state response to endsley petition

8/10/2019 State Response to Endsley Petition

http://slidepdf.com/reader/full/state-response-to-endsley-petition 1/22

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A LV I N GITTISRffiOONGUL, SBN 170296Chief CounselCHIAN HE, SBN 205204Senior Staff CounselCalifornia State Personnel Board801 Capitol Mall , Legal MS-53

Sacramento, CA 95814Telephone: (916) 653-1403Facsimile: (916) 653-4256

Attorneys for RespondentCalifornia State Personnel Board

FILEDSuperior Court OfSacramento

34=201 I t

SUPERIOR COURT OF THE STATE OF CAL IFORN IA

IN AN D FOR TH E COUNTY OF SACRA M ENTO

ANGELINA ENDSLEY,

Petitioner,

V .

CALIFORNIA STATE PERSONNELBOARD,

Respondent.

CaseNo.: 34-2014-80001818

OPPOSITION OF T H E C A L I F O R N I ASTATE PERSONNEL BOARD TOPETITION FOR W RIT O F M A N DA T E

[Exempt from fees (Gov. Code § 6103)]

Date: September 12, 2014Time: 9:00 a.m.Dept.: 31Judge: Honorable Michael P. Kenny

OPPOSITION OKTI-ir. CA LIFOR NIA .STATI- PI.-R.SONNI-X BOARD TO PIHTTION I-OR WRIT Ol- M AN DA IT- O-I-ZUI4-S0U(l 1 ,SI,S)



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T A B L E O F C O N T E N T S

Page

3 rNTRODUCTION I

STATEMENT OF RELEVANT FACTS 1STANDARD OF REVIEW 3

ARGUMENT 4

6 A. Petitioner's appointments failed to conform to the State's selection and

appointment laws, and must be voided 4

1. Consultant I I I Appointment 5

8 2. Administrator I Appointment 12g B. DFEH's failure to exercise due diligence in ascertaining Petitioner's

minimum qualification for the Consultant I I I position constitutes other thangood faith under 2 CCR § 8 13

CONCLUSION 16

()PI'OSn l( )N 01- THF, CA l .ir-ORN I A STATK PEKSONNl-L BOARIJ TO Pl-.TITION I-OR WR IT OI - iVI AN DATIS (34-2014 -XOOO ISIS)



1 T A B L E O F A U T H O R I T IE S

2

3 CASES PAGE

4 California Youth Authority v. State Persoimel Board, supra104 Cal.App.4th 575 ' 3

5Department of Parks Recreation v. State Personnel Board

6 (799i)233 Cal.App.3d813 3

7 Duncan v. Department of Personnel Administration (Duncan)(2000) 77 Cal.App.4 ' 1166 4

8Estate of Gibson

9 (1983) 139 Cal.App.3d 733 11

10 Ferdig v. State Personnel Bd.(1969) 71 Cal.2d 96 511

Flowers v. State Personnel Bd.12 (1985) 174 Cal.App.3d 753 4

13 Friends ofthe Old Trees v. Department of Forestry Fire Protection(1997) 52 Cal.App.4th 1383 '. 3, 4

14Fukuda v. City of Am^els

15 (1999) 20 Cal.4th 805 4

16 Gonzalez, v. State Personnel Bd.(1995) 33 Cal.App.4th 422 3

17Kurtin v. Elieff

18 (2013) 215 Cal.App.4th 455 11

19 Nightingale v. State Personnel Board(1972)7 Cal.3d 507 3

20Pacific Legal Foundation v. Brown

21 (1981) 29 Cal.3d 168 3,5, 10

22 Patten v. State Personnel Bd.

(1951) 106 Cal.App.2d 168 1023People V. Javier A.

24 (l985) 38 Cal.3d8l 3

25 People v. Rajanayagam(2012) 211 Cal.App.4th 42 I I

26Southern California Cement Masons Joint Apprenticeship Com mittee v. California

27 Apprenticeship Council(2013) 213 Cal.App.4th 1531 3

28

i l

OPPOSITION OF THI-CALIFORNIA STATF PI RSONNFL BOARD TO PBTITION FOR WR IT Ol-,VI AND ATP, (.M--2014-8()001SIS)



2

I T A B L E O F A U T H O R I T I E S

(continued)Page

3 State Personnel Board v. Department of Personnel Ad ministration

(2005) 37 Cal.4th512 1,3,5

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S T AT U T E S

Code of Civil Procedure

§ 1094.5 1

Government Code

§ 18900 5, 12

§ 18900, subd. (a) 9

§ 19050 9

§ 19050.8 8

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13 R E G U L A T I O N S

14 California Code of Regulations, title 2

15 § 8 2,13

16 §53 .1 1

17 §54 .1 1

18 §2 12 9

19 § 237 5,9

20 §171.1, subdivision (a) 8

21 § 266 13

C O N S T I T U T I O N A L P R O V I S IO N S

Califomia Constitution, Article V I I

§ 1 4

§ l,subd. (b) 3

26 § 2 1,3

27 § 3 3

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111OPPOSITION OFTHp; CALIFORNIA STATI- PFRSONNFL BOARD TO PFTITION FOR WRIT OF MANDATE (34-2014-SUOO181X)



1 I N T R O D U C T I O N

2 Petitioner, Angelina Endsley, Legal Analyst with the California Department of Fair

3 Employment and Housing (DFEH) filed her Petition for Writ of Administrative Mandamus under

4 Code of Civil Procedure (CCP) § 1094.5, challenging the decision of the State Personnel Board

5 (SPB), which voided her appointments to Fair Employment Housing Consultant III and

5 Administrator I .

7 The SPB is an independent State board created pursuant to Article V I I , section 2, of the

g California Constitution. The SPB administers the merit system to ensure that appointments and

9 promotions in state service are made solely on the basis of merit, efficiency and fitness

10 ascertained by competitive examinations. (State Personnel Board v. Department of Personnel[ Administration (2005) 37 Cal.4th 512, 520.) Under this authority, pursuant to California Code of

12 Regulations, title 2, §§ 53.1 and 54.1, SPB conducted an informal hearing into Petitioner's

J3 appointments to Consultant UI and Administrative I , ' and issued a decision on January 23, 2014,

14 voiding both appointments. The SPB further denied Petitioner's petition for rehearing.

15 Petitioner's writ petition followed.

16 For reasons stated below, the SPB maintains that its decision was just and proper, and the

17 petition for writ of mandate should be denied.

18 STATEMENT OF RELEVANT FACTS

19 Petitioner was appointed to the Legal Analyst position on August 9, 2010, undisputedly an

20 entry level position. (Petitioner's Opening Brief, p. 2, In 3.) On December 30, 2011, for

21 seemingly no apparent reason. Petitioner took a Special Investigator examination and obtained

22 eligibility on that list. (Administrative Record (AR), p. 540.) Seven calendar days thereafter, on

23 January 6, 2012, DFEH announced a Consultant I I I vacancy on its Job Bulletin, which stated,

24 Due to the current hiring freeze, only DFEH employees with transfer or list eligibility need

25 apply. (AR, p. 95.) While DFEH intended to use the Special Investigator list, normally an

26 ' A ll ictercnces to Coiisullant and Administrator positions are to thu positions within DFEH.It is undisputed the DFEH did nol conduct its own Consuhant HI e.xaniination. On September 8, 20

27 DFEH obtained the SPB's approval to use the Special Investigator eligibilily list I'oi' appointments to the Consultantseries. (AR, p. 522.)

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OPPOSITION OF TI-IR CALIFORNIA STATF PI-.RSONNF'.L HOARD TO PETITION FOR WR IT OF M ANDATI-(34-2OI4-15O00181«)



1 unrelated list to Consultant I I I appointments, DFEH did not make this information known to its

2 employees or the public. On January 11, 2012, Petitioner applied for the Consultant I I I position.

3 (AR, p. 543.) By February 1, 2012, Petitioner was confirmed of her eligibility from the Special

4 Investigator list (AR, p. 274), interviewed for the Consultant II I position, and offered and

5 accepted the job based on her list eligibility from the Special Investigator list. (A R, pp. 547-549.)

6 The next day. Petitioner began her employment in the new position, with no transitional period

7 from her previous position as Legal Analyst. (AR, p. 45.)

8 Therefore, within less than a year and a half. Petitioner moved from an entry level position

9 of Legal Analyst to a highly specialized position of Consultant HI, where the incumbent is

10 assigned a specialized caseload of highly complex cases and is expected to conduct the most11 technical complex investigations and analyze the most complex technical issues appropriate

12 interpretation and application of civil rights laws, rules, and regulations. (AR, p. 510.)

13 On February 11, 2013, shortly after Petitioner's one-year probationary period in the

14 Consultant I I I position ended, she was again promoted to Administrator I , a high level position

15 where the incumbent is assigned to plan, organize, and direct the total operation of a district

16 within a large or populous area; administer a special statewide program; and as a highly

17 technical subject-matter expert, assigned responsibility for program development and policy and

18 procedure formulation. (AR, p. 514.)

19 Approximately in June 2013, upon information of Petitioner's possible illegal

20 appointments, the SPB Compliance Review Division began an audit into Petitioner's

21 appointments. (AR, p. 12.) After an informal hearing before an SPB staff hearing officer, on

22 January 23, 2014, the SPB issued a Resolution adopting the hearing officer's proposed decision

23 voiding Petitioner's appointments to Consultant I I I and Administrator I positions. Specifically,

24 the SPB found that Petitioner did not meet the minimum education or experience qualifications

25 for those positions. The SPB further found that DFEH acted in other than good faith under

26 California Code of Regulations, title 2, §8, in making the appointments. (AR, pp. 871-896.)

27 The instant writ petition ensued.

28 / / /

OPPOSri lO N O l ' T H F. C A L I TO R N I A STATF. FKK SONNFL HOARD TO FFTITION FOR WRIT Oi -MANOATF (34-20 l4 -S( )0OIS H)



1 S TA N D A R D O F R E V I E W

2 The SPB is a constitutionally created nonpartisan state agency and is vested the sole

3 authority to administer the state civil service system to ensure that civil service permanent

4 appointment and promotion are made under a general system based upon merit ascertained by

5 competitive examination. Cal. Const., art. VII, §§1, 2, and 3) (State Personnel Bd. v.

6 Department of Personnel Admin. (2005) 37 Cal.4th 512, 526-27; Pacific Legal Foundation v.

1 Brown (1981) 29 Cal.3d 168, 193, 172.)

8 Because the SPB is an agency of constitutional authority, its findings of fact are

9 reviewable in an administrative mandamus proceeding under the substantial evidence test. The

10 record must be viewed in a light most favorable to the decision of the Board and its factual

11 findings must be upheld if they are supported by substantial evidence. (Gonzalez v. State

12 Personnel Bd. (1995) 33 Cal.App.4th 422, 428.) In addition, the SPB's exercise of discretion

13 must be upheld unless it abuses that discretion. (Nightingale v. State Personnel Board (1972) 7

14 Cal.3d 507,515.)

15 Substantial evidence is relevant evidence that a reasonable mind might accept as adequate

16 to support a conclusion. (California Youth Authority v. State Personnel Board, supra, 104

17 Cal.App.4th 575, 584-85). The substantial evidence rule does not require that the evidence

18 appear to the appellate court to outweigh the contrary showing. (People v. Javier A. (1985) 38

19 Cal.3d 811, 819.)

20 The abuse of discretion standard, on the other hand, measures whether, given the

21 established evidence, the act of the lower tribunal falls within the permissible range of options set

22 by the legal criteria. (Department of Parks & Recreation v. State Personnel Board (J99J) 233

23 Cal.App.3d8l3,831.)

24 The courts have found no practical difference between the standards of review applied

25 under traditional or administrative mandamus. (Southern California Cement Masons Joint

26 Apprenticeship Committee v. California Apprenticeship Council (2013) 213 Cal.App.4th 1531,

27 1549, citing Friends of the Old Trees v. Department of Forestry & Fire Protection (1997) 52

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OPPOSITION OF TUB CAUI-'ORNIA STATI- PFRSONNFL BOARD TO PFTITION FOR WR IT 01 - MANI. lATF (34 -2014-S0()OI SI K)



1 Cal.App.4th 1383, 1389.) Both of these standards of review entail considerable deference to the

2 SPB. Under the substantial evidence rule, the reviewing court must view the disputed facts in the

3 light most favorable to the SPB, giving it every reasonable inference and resolving all conflicts in

4 its favor. (Flowers v. State Personnel Bd. (1985) 174 Cal.App.3d 753, 758.) Similarly, under an

5 abuse of discretion review, the appellate court may not supplant the SPB's discretion with its

6 own. Indeed, [t]he fact that reasonable minds may differ ... fortifies the conclusion that [SPB]

7 acted within the area of its discretion. (Id. at p. 761.)

8 Relying on Duncan v. Department of Personnel Administration (Duncan) (2000) 77

9 Cal.App.4'* 1166, Petitioner advocates for the independent judgment standard of review.

10 Petitioner's reliance is misplaced. This standard of review applies to the State's layoff11 proceedings, which differs entirely from the SPB's proceedings. The Duncan court was tasked

12 with determining whether the administrative proceedings concerning layoff were fundamentally

13 fair, a question of law that requires independent judgment, or de novo review. (Ibid, at p. 1 174.)

14 Further, even assuming Duncan somehow applies to the present case, a more careful reading of

15 the case makes it clear that the Duncan decision derived from the California Supreme Court's

16 holdings in Fukuda v. City of Angels (1999) 20 Cal.4th 805, which explicitly states,

17

In exercising its independent judgment, a trial court must afford a strongIg presumption of correctness concerning the administrative findings, and the

party challenging the administrative decision bears the burden of19 convincing the court that the administrative findings are contrary to the

weight of the evidence. (Ibid., at p. 817.)

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21

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23

24A . Petitioner's appointments failed to conform to the State's selection and

25 appointment laws, and must be voided.26 Constitutional provisions adopted by the voters of this state created the SPB and

27 established the merit principle in state civil service employment. (Cal. Const., art, V l l , § 1, subd.

28

As such, in order to prevail. Petitioner must prove that the SPB's decision was not

supported by the weight of the evidence, or substantial evidence, and disputed facts must be

viewed in light most favorable to the SPB.A R G U M E N T

OPPOSITION OF THF CALIFORNIA STATF PFRSONNF.L BOARD TO PFTITION FOR WRIT(J|- M A N D ATE (.34-2014-80001SIS)



1 (b.) The merit principle requires that hiring and promotion of state civil service employees be

2 made only on the basis of merit. (Pacific Legal Foundation v. Brown (1981) 29 Cal.3d 168, 184.)

3 The SPB is vested with the power and authority to administer the merit principle. (State

4 Personnel Board v. Department of Personnel Administration (2005) 37 Cal.4th 512, affirming

5 Court of Appeal's decision (2003) 36 Cal.Rptr.3d 142.) It is within the SPB's jurisdiction to

6 declare an appointment to state civil service position void from the beginning. (Ferdig v. State

7 Personnel Bd. (1969) 71 Cal.2d 96, 109.)

8 Two appointments cu-e at issue in this case: Petitioner's promotional appointments to

9 Consultant I I I and Administrator I .

10 1. Consultant I I I Appointment

It is undisputed that the SPB granted DFEH permission to use the Special Investigator List

12 to make appointments to the FEH Consultant I I I position. The SPB made it clear that, in order to

13 be eligible for the appointment, candidates must necessarily meet the minimum qualifications

1^ (MQs) ' for both the classification of Special Investigator and the classification of Consultant ID.'*

15 (AR, p. 522.)

'6 MQs for the Classification of Special Investigator.

^ There are three sets of patterns under which a candidate can meet the MQs for the

1^ classification of Special Investigator. Petitioner only claims that she met Pattern I I I . The MQs

19 under Pattern I I I provides:

20Pattern I I I - Education: Equivalent to completion ol two years of college

21 with a major in criminal justice, law enforcement, criminology, policescience, administration of justice, business, or public administration.

22 (Additional qualifying experience may be substituted for the requirededucation on a year-for-year basis.) Applicants who are being consideredfor Special Investigator positions must possess the educational equivalent

24 to completion of the twelfth grade; and

The MQs are the minimum education and experience qualifications each candidate must possess in orderto complete in a promotional examination. (Cal. Code Regs., lit. 2, § 237.)

26 •* Under Government Code section 18900, to be eligible for appoiniment, an applicant must meet both listeligibility and the minimum qualitications for the position she is appointed to. Therefore, in this case, since DFEH

27 appointed Petitioner to Consultant III the Special Investigator list, she must necessarily meet the minimumqualiUcations for both Special InvestisJalor and for Consullanl I I I classifications.

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OPiosrriON OF THE CALIFORNIA STATI-; PERSONNFT. BOARD TO PETITION FOR WRIT OF MANDATE (.14-2014-80001 HI8I



markedly different course studies and serve significantly different puiposes. Without sufficient

2 evidence, Petitioner's paralegal studies cannot be categorically credited toward the coursework of

3 criminal justice. As such, the SPB's evaluation of the evidence is reasonable, and therefore must

4 be given great weight.

5 With regard to the work experience component of the MQ requirements. Petitioner was

6 required to have one year of experience in the California state service performing duties at a level

7 comparable to those of either an Investigator Assistant, Special Investigator Assistant, or in an

8 investigation assignment in the class of Management Services Technician, Range B. Because the

9 specification permits considering duties performed at a level comparable to several

10 classifications, the hearing officer considered and credited a portion of petitioner's Legal Analyst

11 work as qualifying experience. It is undisputed that 45% of Petitioner's Legal Analyst duties are

12 comparable to that of Investigator Assistant or Special Investigator Assistant, the hearing officer

13 credited 45% of her one year, five months, and 21 days performing duties in the Legal Analyst

14 position, or, approximately eight months as qualifying experience. Thus, the hearing officer

15 determined that Petitioner was four months short of the required one year experience.

16 Petitioner appears to argue that the Board's review of her work experience is too limiting

17 and fails to account for what she represents to be the type of work or duties she actually

18 performed regardless of her classification. In effect, if her actual work performance was

19

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^ 45% of DFEH Legal Analyst duties are described as follows:20 Conducts neutral fact-finding investigations into complaints of discrimination. Analyzes issue

with reference to the appropriate interpretation and applicalion of civil rights laws, rules, and21 regulations. Meets time frames based on established guidelines for case investigation and as set

forth by statutory requirement(s). Conducts on-sile investigations, as warranted. Determines22 whether a violation of the law has occurred. Prepares a report pertaining to each investigation

completed in accordance with Departmental procedures/guidelines. Uses effective communication23 skills in performing all aspects of the job duties. Explores resolution and negotiates settlements

between complainants and respondents. Prepares for and participates in formal settlement2^ c(jnferences with the District Administrator, complainanl(s) and respondent(s). Prepares

setilemeni documents. Maintains proper recoids in compliance with Departmental procedures.22 Maintains case diaries to rellecl chmlges of address, dates of correspondence and contacts, and

the content of conversations. Interprets and explains areas of Departmental jurisdiction toprospective complainants and respondents. Receives complaints either by telephone or in person.Determines whether complaints should be accepted for investigation or rejected. Analyzes issueswith reference to the appropriate interpretation and applicalion of vaiious civil rights laws, rules,

27 mid regulations. Solicits sensitive information in a tactful manner in order to draft complaints.(AR, p. 480.)

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7OPPOSI TION Ol- TIIE CALIFORNIA ST.VPE PERSONNEL BOARD TO PETITION FOR WRIT OF MAN DATE: (7i4-2014-80001818)



1 considered. Petitioner contends that she would have the one-year experience needed for the MQ

2 requirement. Petitioner's argument lacks credibility.

3 In accordance with California Code of Regulations, title 2, §171.1, subdivision (a), when

4 determining whether an applicant has completed the minimum time required by the experience

5 component in the minimum qualifications prescribed for the class, the calendar time required

6 must be in a full-time job or work assignment. In other words. Petitioner must perform the job

7 duties full time in the classification of Investigator Assistant or Special Investigator Assistant in

8 order for that experience to be used as qualifying experience. It is undisputed that Petitioner

9 performed the full range of duties for a Legal Analyst. Without significant overtime hours,

10 regardless of Petitioner's diligence or competence, it is highly improbable bordering on the

11 incredulous for her to offer that while working full time as a Legal Analyst, she simultaneously

12 performed the entire range of duties of a full-time Investigator Assistant or Special Investigator

13 Assistant.

14 Petitioner is also legally mistaken in her position. Assuming, arguendo, that Petitioner did

15 perform the duties that constituted one-year of qualifying experience, any such experience in

16 excess of 45% of her normal duties would have been considered working out of her appointed

17 class of Legal Analyst. Tyra Gilmer (Gilmer), DFEH's Personnel Officer at the time of

18 Petitioner's appointments, readily concedes that Petitioner worked out-of-class during her tenure

19 as Legal Analyst. (AR, p. 777.)

20 Government Code section 19050.8 provides that the out-of-class experience can only be

21 used to meet minimum requirements /Jit was obtained by the employee in good faith and was

22 properly verified under standards prescribed by SPB rule.

23 SPB rule provides the following:

24(b) Verification of out-ot-class experience. An employee shall be eligible

25 to receive credit for out-of-class experience in meeting the minimumqualifications for a civil service examination:

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27

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(1) When al l of the following criteria are met:

OPPOSITION Ol- TIIE CALIFORNIA STATF PERSONNI-.L BOARD TO PETITION FOR WRIT OF M A N D AT E (;U-20I4-S00()l 81 8)



2

(A ) The employee shall submit a written request that the appointingauthority, or his/her designee, certify that the employee acceptedand performed duties assigned by the appointing authority that

2 were not consistent with the employee's class of appointment.Requests shall not be made prior to performing out-of-class duties

4 a minimum of 30 consecutive calendar days, nor later than oneyear after the ending date of the out-of-class duties.

5

6(B) The appointing authority or his/her designee under whom the

claimed out-of-class experience was gained shall document by a7 written statement the employee's request for certification of out-

of-class experience. The depcutment's statement shall include a8 description of the type and level of duties performed; a conclusion

regarding whether the duties are or are not consistent with the9 employee's class of appointment and, if not consistent, an

identification of the class to which such duties are appropriate; thebeginning and ending dates of the out-of-class experience; the titleof the examination for which the employee is applying, ifapplicable; and any further information required by the executive

12 officer.

10

13 (C) The applicant shall attach a copy of the verification statement tothe application form for any examination for which he/she isapplying.

(Cal. Code Regs. tit. 2, § 212. Emphasis added.)

As such, both DFEH and Petitioner must comply with the process of obtaining

verification and certification of the out-of-class experience before applying it as qualifying

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experience. Petitioner might argue that it is an onerous rule. Not so. Appointments to vacant

20 civil service positions must be made from employment lists in strict accordance with the SPB

21 rules (Gov. Code, § 19050), and persons who may be lawfully appointed to a position must meet

22

the MQs requisite to the performance of the duties of that position. (Gov. Code, § 18900, subd.23(a); Cal. Code Regs. tit. 2, § 237.) This rule is the cornerstone of the State civil .service merit

24system. The rule promotes and further ensures that candidates' experience and qualifications are

25

2g vetted through objective and verifiable measures. If an applicant's stated actual work experience

27 is unconditionally accepted even though the stated experience exceeds or are beyond the duties

28 normally attendant to the positions held by the applicant, such as this case, one would be hard

9OPPOSITION OF n-ii: CALIFORNIA ST,-\TE PERSONNEL BOARD TO PETITION FOR WRIT or- MANDATE i34-20i4-80o()i8i8.)



pressed to find any applicant lacking the work experience needed to meet the MQ requirements.

Lideed, the haphazard acceptance championed by Petitioner promotes the likely circumvention of

the M Q requirements. Absent adherence to the rule, the civil service merit system would likely to

be subject to nepotism and partiality, forming a spoils system that the SPB aims to eliminate.

(Pacific Legal Foundation v. firawn (1981) 29 Cal.3d 168, 195.)

It is well-established when an employee accepts the position as an employee of the state

8 under the civil service laws, he does so with knowledge that the appointment is subject to such

9 laws. (Patten v. State Personnel Bd. (1951) 106 Cal.App.2d 168.) Applying the rule to this case,

10 8DFEH knew the proper process, and should have utilized the appropriate procedure to document,

11

12

13

14

verify and certify Petitioner's out-of-class experience before crediting it toward the MQs.

Without doing so, Petitioner's out-of-class experience while performing in the class of Legal

Analyst, if any, cannot be used or considered as qualifying experience for minimum qualifications

Investigator.

15 analysis towards her pursuit of a Special Investigator position.

16 As such, substantial evidence supports the SPB's finding that Petitioner only had eight

months of qualifying experience, failing to meet the MQs for the classification of Special

18

19

2Q MQs for the Classification of Consultant I I I .

21 Petitioner iugues that she met two patterns for the MQs for the classification of Consultant

22 I f l - The two patterns are as follows:

23 Pattern I - One year of experience in the California state service performingthe duties of a Fair Employment and Housing Consultant 11.

25* In fact, Personnel Officer Tyra Gilmer properly approved an out-of-class assignment for Petitioner to

26 perform the duties ofthe FEH Administralor I position from May 1, to August 28, 2012, while she was in ConsultantHI position. (AR, p. 473.)

27 '' Additionally, Petitioner did not dispute the SPB's llnding that her paralegal experience in ihe private sectoris non-qualifying.

28

10OPPOSITION OF THE CALIFORNIA STATE PERSONNEL BOAR D TO PETITION F(JR WRVT OE M A N D ATE (34-2014-8000181S)



1 Pattern I I - Experience: Four years of the above-described experience.(Experience in the California state service applied toward this requirementmust include at least one year in a class with a level of responsibility equal to

2 a Fair Employment and Housing Consultant I I . ) ; and

4 Education: Equivalent to graduation from college. (Additional qualifyingexperience may be substituted for the required education on a year-for-year

5 basis.)

6 Under Pattern I : There is no dispute that Petitioner was never employed nor served as a

7 Fair Employment and Housing Consultant I I during her tenure with the state. Indeed, DFEH's

8 witness Robin Icelow (Icelow), DFEH Personnel Analyst, testified that she did not believe

9 Petitioner met the criteria under Pattern I because the language of a is different from

10 comparable to, implying that Petitioner would need to be in the classification of Consultant II

11 in order to qualify under Pattern I. (AR, pp. 565, 672 - 673, 688.)

12 Icelow's inteipretation reflects the general civil service personnel practice, and conforms

13 to the rule of statutory construction. The rule of statutory construction provides that the court

14 must prefer statutory inteipretations which harmonize and reconcile potentially conflicting

15 statutory meanings, and statutes relating to the same subject matter must be read together and

16 reconciled whenever possible. (Kurtin v. Elieff (20\3) 215 Cal.App.4th 455, 483; Estate of

17 Gibson (1983) 139 Cal.App.3d 733, 736.) hi this case, the phrase of a must be read as in the

18 classification of a in order to be distinguished from and reconciled with the language of in a

19 class with a level of responsibility equal to (see MQs for Consultant HI, Pattern I I above) or at a

20 level comparable to (see MQs for Special Investigator above).

21 Petitioner argues, again, that the SPB failed to evaluate her actual performance. This

22 argument must similarly fail based on the analysis above that out-of-class experience is non-

23 qualifying unless the applicant and the department follow the specifically prescribed rules to

24 verify and certify the out-of-class experience. In addition, under Petitioner's interpretation, the

25 requirement under Pattern I would be substantially lower than the requirement under Pattern I I ,

26 (infra), which would render Pattern I I superfluous. This interpretation should not be adopted by

27 the court as the elementary rule of construction requires that effect be given, if possible, to every

28 word, clause and .sentence of a statute, so that no part will be inoperative or superfluous, void or

OPPOSITION OF THE CALIFORNIA STATE PERSONNEL BOARD 10 PETITION FOR WRIT OF M A N D AT E (:W-2014-80001818)



1 insignificant, and so that one section will not destroy another unless the provision is the result of

2 obvious mistake or error. (People v. Rajanayagam (2012) 211 Cal.App.4th 42, 51.)

3 Under Pattern I I , Petitioner was required to have four years of experience performing

4 duties similar to that of Consultant I I , with at least one year- in a class with a level of

5 responsibility equal to Consultant I I . In addition, Petitioner was required to have a college

6 degree, or substitute required education with additional qualifying experience on a year-for-year

7 basis. Since Petitioner did not have a college degree at the time she applied for Consultant I I I

8 position, to meet the MQs under Pattern I I , she must have four years of work experience similar

9 to that of Consultant I I , plus another four years of similar experience substituting for a college

10 degree. This would require that Petitioner have a total of eight years of qualifying experience,

11 which Petitioner undoubtedly lacked.

12 Failing to meet the MQ in either education or experience disqualifies an applicant for the

13 state position sought. Since Petitioner lacked qualification in both education and experience for

14 both Special Investigator and Consultant I I I positions, Petitioner's appointment to Consultant I I I

15 was unlawful and must be voided.

16 2. Administrator I Appointment

1^ DFEH provided, correctly, that at the time of Administrator I appointment, the DFEH did

1^ not have an appropriate list for the Administrator I position and as a result, it used the Special

'9 Services Manager (SSM) I I examination list to f i l l the Administrator I position. (AR, p. 476, fn

20 6.) It is undisputed that to be eligible for appointment to the Administrator I position, a candidate

21 must meet MQs for both the SSM I I and Administrator 1 in order to compete in the selection

22 process for Administrator I . (AR, pp. 885-886; Gov. Code, § 18900.)

23 Petitioner does not dispute any of the hearing officer's analysis on Petitioner's

24 qualifications to her appointment to the Administrator 1 position. Petitioner only argues that i f

25 [the Consultant III] promotion was lawful, the second promotion to FEH Administrator 1 would

26 also be lawful because [under] the MQs it would be qualifying experience. (Petitioner's

27 Opening Brief, p. 20, In 25-26.)

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OPPOSITION OFTHE CALIFORNIA ST.ATE PERSONNEL BOARD TO PETITION FOR WRIT OF M A N D ATE (34-2014-80001818)



Since the evidence clearly points to Petitioner's lack of qualification for the Consultant III

2 position, by Petitioner's own rationale, she did not qualify for the Administrator I appointment.

3 But even without deciding the legality of Petitioner's appointment to Consultant I I I and

4 therefore taking into consideration Petitioner's actual experience while performing the duties of

5 Consultant HI , Petitioner nonetheless lacked the MQs for Administrator I . Here, Petitioner only

6 disputed the SPB's determination on Petitioner's qualification under Pattern I for Administrator I .

7 MOs for Administrator I

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Pattern I - One year of experience in the California state service performingg the duties of a Fair Employment and Housing Consultant UI (Supervisor) or a

Fair Employment and Housing Consultant I I I (Specialist); or two years of

0 experience in the California state service performing the duties of a FairEmployment and Housing Consultant II.

I I

12 By admission, after being appointed to the Consultant OI position. Petitioner was placed

13 on an out-of-class assignment as Administrator I for 120 days from May through August, 2012.

14 (AR, pp. 473, 653-654, 619.) Therefore, Petitioner only worked in the classification of

15 Consultant HI for eight months, four months short of the required one-year experience in the state

16 service performing the duties of a Consultant I I I under Pattern I .

17 Since Petitioner must meet both MQs for the Staff Services Manager I I classification and

the Administrator I , her lack of qualification for either classification makes her ineligible for the

19 appointment to the position of Administrator I .

20 Accordingly, the SPB's decision voiding Petitioner's appointments to Consultant III and

21 Administrator I must be upheld.

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B. D F E H s failure to exercise due diligence in ascertaining Petitioner's minimum23 qualification for the Consultant I I I position constitutes other than good faith

under 2 C C R § 8.

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California Code of Regulations, title 2, § 266 authorizes the SPB to void an unlawful

appointment within five years of the appointment if the employer is found to have acted in other

than good faith. Section 8 under title 2 of the California Code of Regulations provides further

guidance in determining when an employer acts in good faith or other than good faith.

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OPPOSITION (JI- TI IE CALIFORNIA STATE P I - :RS0NNEL BOARD Tl ) PETITION FOR WRIT Oi- M A N D AT E (34-20l4-X00()181 8)



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

2 (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

4 be applied; and(3) Assure that positions are properly classified; and

5 (4) Assure that appointees have appropriate civil service appointmenteligibility; 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 reference

8 materials, training, and supervision necessary to avoid any mistakes of law orfact to the persons responsible for the pertinent personnel transactions; and

9 (7) Act in a manner that does not improperly diminish the rights andprivileges of other persons affected by the appointment, including otherelisibles.

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The SPB's decision found that DFEH failed to act in good faith in areas of subdivision

(a)(1), (a)(2), (a)(4), (a)(6), and (a)(7). (AR, p. 893.) The finding is well-supported by the

evidence.

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As discussed in detail supra, in order to protect the merit system and prevent

16 circumvention, state civil service statutes and regulations prescribe specific rules that must be

17 strictly adhered to by the departments. A state department's personnel or human resources

officers are entrusted with the serious responsibilities to carry out the rules. The simple practice

to demonstrate the intent to observe the spirit and the intent of the law is to follow the law.

DFEH failed to do so. Icelow, as an experience Personnel Analyst, failed to ascertain Petitioner's

qualifications and ensure that her representation is accurate and supported by .appropriate

93 documentation. The need for vetting is further heightened considering that Petitioner is a new

24 employee to the state and had only occupied an entry-level position for less than a year and a half

25 when she applied for highly specialized positions within the DFEH. On its face, as admitted by

Kim Ferrell, DFEH's current Personnel Officer, Petitioner lacked minimum qualifications for

both the Special Investigator and Consultant I I I positions. When Chris Thomas, another DFEH

14OPI'OSITION OFTHE CALIFORNIA .STA PE PERSONNEL BOARD O PETITION FOR WRIT OF M A N D AT E (34-2014-80001818j



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Personnel Analyst, confronted Gilmer with Petitioner's lack of qualifications, Gilmer failed to

make reasonable inquiry as simple as obtaining Petitioner's transcript and ascertaining

Petitioner's out-of-class experience. Gilmer testified that even though she was sitting on the

fence regarding Petitioner's qualifications, and even when faced with internal complaints about

Petitioner's fast ascent, she failed to consult with the authorities in the field of selection and

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7 appointment, failed to evaluate Petitioner's qualifications, and failed to apply the civil service

8 laws that were plainly available to her.

9 The circumstances surrounding Petitioner's well-timed attainment of eligibility on the

Special Investigator list that was normally unrelated to the Consultant I I I position, her accelerated

promotions to both classifications of Consultant I I I and Administrator I with unverified MQs, and

DFEH's quick dispelling of internal complaints, point to the inevitable conclusion that Petitioner

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was pre-selected for her appointments and the MQs were ignored. As such, DEFH undeniably

15 acted in other than good faith in Petitioner's appointment process.

16 Petitioner argued that the SPB did not make specific credibility determination of

individual witnesses, and did not find less than good faith in any of the witnesses. Petitioner fails

to understand that credibility determination is unnecessary in this case. The witnesses'

undisputed testimony allude to the fact that the department, particularly its personnel office, as a

whole, failed to exercise due diligence to ascertain Petitioner's appointment e ligibility, and failed

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22 to observe or intentionally disregarded the law even when they questioned or had doubts about

23 Petitioner's qualifications.

24 As such, the evidence established that DFEH acted in other than good faith in making

25Petitioner's appointments.

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OPPOSrni )N OFTHE CALIFORNIA STATE PERSONNEL BOARD TO PBTITION FOR WRI T OF M A N D AT E (34-2014-80001818)



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C O N C L U S I O N

DFEH circumvented the civil service laws when it appointed Petitioner, a Legal Analyst,

to the positions of Consultant I I I and then Administrator I . DFEH did so without verifying, in

good faith. Petitioner's minimum qualifications. As such. Petitioner's appointments were

properly voided and her writ of administrative mandamus and damages must be denied.

^ Date: August 14, 2014 Respectfully Submitted,A LV I N G I T T I S R f f i O O N G U L

CHIAN HESenior AttorneyAttorneys For Respondent

j2 California State Personnel Board

OPPOSITION OFTHE CALIFORNIA TATE PERSONNEL BOARD TO PETITION FOR WRITOl- MANDATE (34-2OI4-8OO01818)



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D E C L A R AT I O N O F S E RV I C E

Case Name: Angelina Endsley v. California State Personnel Board

CaseNo.: 34-2014-80001818

am employed in County of Sacramento, California. I am over the age of 18 years andnot a party to the within action. M y business address is 801 Capitol M all, Legal - MS - 53,

g Sacramento, California 95814.

7 I am familiar with the practice of this office whereby the mail is sealed, given theappropriate postage and placed in a designated mail collection area. The mail is thereafter

8 deposited in a United States mailbox at the close of each business day.

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13U.S. Mail

14 Patricia Tsubokawa ReevesLaw Office of PTRP.O. Box 1407

6 Davis, CA 95617-1407

On the date below indicated, I served the attached document, entitled:

O P P O S I T I O N O F T H E C A L I F O R N I A ST AT E P E R S O N N E L B O A R D T O

P E T I T I O N F O R W R I T O F M A N D AT E

On the parties addressed below:

17 Golden State OvernightSacramento County Superior Court720 9 StreetSacramento, CA 95814

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9Q The following is the procedure in which service of this document was effected:

21 [X] (By United States mail)U.S. Postal Service (Placing sealed envelope with postage thereon fully prepared

22 in the designated ai'ea for out-going mail in accordance with this office's practice,

22 whereby mail deposited in a U.S. mailbox in Sacramento County, at the close ofthe business day.)

24[X] (By overnight delivery)

25 enclosed the documents in an envelope or package provided by an overnightdelivery carrier and addressed to the persons at the addresses indicated above. I

7 ft

^ placed the envelope or package for collection and overnight delivery at an office ora regularly utilized drop box of the overnight delivery carrier.

/ / /

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OPPOSI TION 01- THE CALIFORNIA STA TE PE.RSONNEL BOARD 'TO PETITION FOR WRIT OF M A N D ATE (34-2014-80001818)



[ ] (By personal service)caused such envelope to be delivered by hand to the location(s) of the

^ addressee(s), as listed above.

3[ ] (By facsimile)

4 Sent via facsimile machine before sealing envelope, facsimile number:(pursuant to stipulation of above entitled party as indicated above.)

[ ] (By electronic service)Based on a court order or an agreement of the parties to accept service by

q electronic transmission, I caused the document to be sent to the person(s) at theelectronic notification addresses listed above. I did not receive, within a

8 reasonable time after the transmission, any electronic message or other indicationthat the transmission was unsuccessful.

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10declare under penalty of perjury that the foregoing is true and correct, and that this

declaration was executed at Sacramento, California on August 15, 2014.

C. RUBIO12 Declarant Signature

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state response to endsley petition

Documents