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ALVIN GITTISRffiOONGUL, SBN 170296

Chief Counsel
CHIAN HE, SBN 205204
Senior Staff Counsel
California State Personnel Board
801 Capitol Mall, Legal MS-53
Sacramento, CA 95814
Telephone: (916) 653-1403
Facsimile: (916) 653-4256
Attorneys for Respondent
California State Personnel Board

FILED
Superior Court Of
Sacramento

34=201

SUPERIOR COURT OF THE STATE OF CALIFORNIA

IN AND FOR THE COUNTY OF SACRAMENTO

It

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ANGELINA ENDSLEY,
Petitioner,

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V.

CALIFORNIA STATE PERSONNEL

BOARD,
Respondent.

CaseNo.: 34-2014-80001818
OPPOSITION OF THE CALIFORNIA
STATE PERSONNEL BOARD TO
PETITION FOR WRIT OF MANDATE
[Exempt from fees (Gov. Code 6103)]
Date: September 12, 2014
Time: 9:00 a.m.
Dept.: 31
Judge: Honorable Michael P. Kenny

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OPPOSITION OKTI-ir. CALIFORNIA .STATI- PI.-R.SONNI-X BOARD TO PIHTTION I-OR WRIT Ol- MANDA IT- O-I-ZUI4-S0U(l 1 ,SI,S)

TABLE OF CONTENTS
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Page
rNTRODUCTION

STATEMENT OF RELEVANT FACTS

STANDARD OF REVIEW

ARGUMENT

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

appointment laws, and must be voided

1. Consultant III Appointment

2. Administrator I Appointment
B. DFEH's failure to exercise due diligence in ascertaining Petitioner's
minimum qualification for the Consultant III position constitutes "other than
good faith" under 2 CCR 8
CONCLUSION

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

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TABLE OF AUTHORITIES

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CASES

PAGE

California Youth Authority v. State Persoimel Board, supra

104 Cal.App.4th 575
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Department of Parks & Recreation v. State Personnel Board

(799i)233 Cal.App.3d813

Duncan v. Department of Personnel Administration (Duncan)

(2000) 77 Cal.App.4"' 1166

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Estate of Gibson
(1983) 139 Cal.App.3d 733

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Ferdig v. State Personnel Bd.

(1969) 71 Cal.2d 96

Flowers v. State Personnel Bd.

(1985) 174 Cal.App.3d 753

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12
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Friends ofthe Old Trees v. Department of Forestry & Fire Protection

(1997) 52 Cal.App.4th 1383
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3, 4

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Fukuda v. City of Am^els

(1999) 20 Cal.4th 805

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Gonzalez, v. State Personnel Bd.

(1995) 33 Cal.App.4th 422

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Kurtin v. Elieff
(2013) 215 Cal.App.4th 455

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Nightingale v. State Personnel Board

(1972)7 Cal.3d 507

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Pacific Legal Foundation v. Brown

(1981) 29 Cal.3d 168

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Patten v. State Personnel Bd.

(1951) 106 Cal.App.2d 168

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People V. Javier A.
(l985) 38 Cal.3d8l

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

II

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Southern California Cement Masons Joint Apprenticeship Committee v. California

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

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

TABLE OF AUTHORITIES
(continued)

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State Personnel Board v. Department of Personnel Administration
(2005) 37 Cal.4th512

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STATUTES
Code of Civil Procedure
1094.5

Government Code
18900

5, 12

18900, subd. (a)

19050

19050.8

REGULATIONS

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California Code of Regulations, title 2

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53.1

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54.1

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212

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237

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171.1, subdivision (a)

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266

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CONSTITUTIONAL PROVISIONS

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Califomia Constitution, Article VII

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l,subd. (b)

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

INTRODUCTION

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

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

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

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

Administrator I.

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

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

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

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ascertained by competitive examinations. (State Personnel Board v. Department of Personnel

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Administration (2005) 37 Cal.4th 512, 520.) Under this authority, pursuant to California Code of

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

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

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voiding both appointments.

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Petitioner's writ petition followed.

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The SPB further denied Petitioner's petition for rehearing.

For reasons stated below, the SPB maintains that its decision was just and proper, and the
petition for writ of mandate should be denied.

STATEMENT OF RELEVANT FACTS

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

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

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

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

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

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

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

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' All 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
DFEH obtained the SPB's approval to use the Special Investigator eligibilily list I'oi' appointments to the Consultant
series. (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)

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

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

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

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

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

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

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

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

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

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assigned "a specialized caseload of highly complex cases" and is expected to "conduct the most

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technical complex investigations" and "analyze the most complex technical issues" appropriate

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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The instant writ petition ensued.

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OPPOSri lON Ol'THF. CALITORNIA STATF. FKK.SONNFL HOARD TO FFTITION FOR WRIT O i - M A N O A T F (34-20l4-S()0OIS!H)

STANDARD OF REVIEW

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

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

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

competitive examination.

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

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

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

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

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

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

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findings must be upheld if they are supported by substantial evidence."

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

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

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Cal.3d 507,515.)

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(Gonzalez v. State

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

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to support a conclusion.

(California Youth Authority v. State Personnel Board, supra, 104

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

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

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Cal.3d 811, 819.)

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

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

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

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Cal.App.3d8l3,831.)

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

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under traditional or administrative mandamus."

(Southern California Cement Masons Joint

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

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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)

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

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

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

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

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

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

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

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

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

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Petitioner's reliance is misplaced.

This standard of review applies to the State's layoff

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proceedings, which differs entirely from the SPB's proceedings. The Duncan court was tasked

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with determining whether the administrative proceedings concerning layoff were fundamentally

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

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

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

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

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In exercising its independent judgment, a trial court must afford a strong

presumption of correctness concerning the administrative findings, and the
party challenging the administrative decision bears the burden of
convincing the court that the administrative findings are contrary to the
weight of the evidence. (Ibid., at p. 817.)
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.
ARGUMENT

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

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

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established the merit principle in state civil service employment. (Cal. Const., art, Vll, 1, subd.

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OPPOSITION OF THF CALIFORNIA STATF PFRSONNF.L BOARD TO PFTITION FOR WRIT(J|- MANDATE (.34-2014-80001SIS)

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

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

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

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

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

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

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

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

Consultant III and Administrator I.
1. Consultant III Appointment
It is undisputed that the SPB granted DFEH permission to use the Special Investigator List

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

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

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

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(AR, p. 522.)

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MQs for the Classification of Special Investigator.

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

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classification of Special Investigator. Petitioner only claims that she met Pattern III. The MQs

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under Pattern III provides:

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Pattern I I I - Education: Equivalent to completion ol 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.) Applicants who are being considered
for Special Investigator positions must possess the educational equivalent
to completion of the twelfth grade; and
' The MQs are the minimum education and experience qualifications each candidate must possess in order
to complete in a promotional examination. (Cal. Code Regs., lit. 2, 237.)
* Under Government Code section 18900, to be eligible for appoiniment, an applicant must meet both list
eligibility and the minimum qualitications for the position she is appointed to. Therefore, in this case, since DFEH
appointed Petitioner to Consultant III the Special Investigator list, she must necessarily meet the minimum
qualiUcations for both Special InvestisJalor and for Consullanl III classifications.

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

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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.)

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With regard to the educational requirement, the SPB's decision recognized that Petitioner

had completed 42 units in Criminal Justice studies at the University of Phoenix at the time she

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applied for the Consultant III position. Petitioner argues that her paralegal studies at MTI College

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(MTI) qualify for the additional 18 units required in the area of criminal justice. While Petitioner

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may so believe, the evidence is not persuasive. At the time of Petitioner's appointment, it was

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unclear what courses of paralegal studies were offered, whether the courses were duplicative of
the criminal justice curriculum at University of Phoenix she took, or to what extent the courses at
MTI would be weighed, if at all, toward the criminal justice program at the University of
Phoenix. Without the requisite information, it would not have been evident that Petitioner met
the educational component of the MQ requirements. While there may be common foundational

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areas of criminal justice and paralegal studies, it is far from illogical, as Petitioner claims, to find
that paralegal studies "revolves around the substantive and procedural study of law and not

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criminal justice." The bachelor's degree in criminal justice offered by University of Phoenix

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provides instructions in criminal justice principles, concepts, and theories, as well as a practice

orientation to justice administration in the domains of law enforcement, criminal courts, and

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corrections."^ Paralegal studies at MTI, on the other hand, teaches the skills of assisting attorneys

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with interviews, trial preparation, and other legal processes; maintaining client and case files;

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performing legal research; preparing, editing and transmitting legal message and documents;

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performing electronic filing and computerized calendaring.^'

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These two disciplines have

^ http://www.phoenix.cdu/programs/degree-programs/criminal-justice-and-security/bachelor,s/bscja.html
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OPI'OSITION OI-'THF; CALIFORNIA STATI-: PI-RSONNEL BOARD TO PETITION FOR WRIT OF MANDATE (.'54-2014-SOOOIXISI

markedly different course studies and serve significantly different puiposes. Without sufficient
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evidence, Petitioner's paralegal studies cannot be categorically credited toward the coursework of

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

be given great weight.

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

required to have 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. Because the

specification permits considering duties performed at a level comparable to several

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

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

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

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

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

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

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

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

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

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^ 45% of DFEH Legal Analyst duties are described as follows:

Conducts neutral fact-finding investigations into complaints of discrimination. Analyzes issue
with reference to the appropriate interpretation and applicalion of civil rights laws, rules, and
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. Determines
whether a violation of the law has occurred. Prepares a report pertaining to each investigation
completed in accordance with Departmental procedures/guidelines. Uses effective communication
skills in performing all aspects of the job duties. Explores resolution and negotiates settlements
between complainants and respondents. Prepares for and participates in formal settlement
c(jnferences with the District Administrator, complainanl(s) and respondent(s). Prepares
setilemeni documents. Maintains proper recoids in compliance with Departmental procedures.
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 to
prospective complainants and respondents. Receives complaints either by telephone or in person.
Determines whether complaints should be accepted for investigation or rejected. Analyzes issues
with reference to the appropriate interpretation and applicalion of vaiious civil rights laws, rules,
mid regulations. Solicits sensitive information in a tactful manner in order to draft complaints.
(AR, p. 480.)

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

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

requirement. Petitioner's argument lacks credibility.

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

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

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

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

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

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

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

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

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

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

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Assistant.

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

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

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

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

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

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

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

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

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properly verified under standards prescribed by SPB rule.

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SPB rule provides the following:

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

to receive credit for out-of-class experience in meeting the minimum
qualifications for a civil service examination:
(1) When all of the following criteria are met:

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OPPOSITION Ol- TIIE CALIFORNIA STATF PERSONNI-.L BOARD TO PETITION FOR WRIT OF MANDATE (;U-20I4-S00()l 81 8)

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(A) The employee shall submit a written request that the appointing
authority, or his/her designee, certify that the employee accepted
and performed duties assigned by the appointing authority that
were not consistent with the employee's class of appointment.
Requests shall not be made prior to performing out-of-class duties
a minimum of 30 consecutive calendar days, nor later than one
year after the ending date of the out-of-class duties.

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

claimed out-of-class experience was gained shall document by a
written statement the employee's request for certification of outof-class experience. The depcutment's statement shall include a
description of the type and level of duties performed; a conclusion
regarding whether the duties are or are not consistent with the
employee's class of appointment and, if not consistent, an
identification of the class to which such duties are appropriate; the
beginning and ending dates of the out-of-class experience; the title
of the examination for which the employee is applying, if
applicable; and any further information required by the executive
officer.
(C) The applicant shall attach a copy of the verification statement to
the application form for any examination for which he/she is
applying.
(Cal. Code Regs. tit. 2, 212. Emphasis added.)

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As such, both DFEH and Petitioner must comply with the process of obtaining
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verification and certification of the "out-of-class experience" before applying it as qualifying

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

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

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

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the MQs requisite to the performance of the duties of that position. (Gov. Code, 18900, subd.
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(a); Cal. Code Regs. tit. 2, 237.) This rule is the cornerstone of the State civil .service merit
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system. The rule promotes and further ensures that candidates' experience and qualifications are
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vetted through objective and verifiable measures. If an applicant's stated actual work experience

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

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normally attendant to the positions held by the applicant, such as this case, one would be hard
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OPPOSITION 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 MQ 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
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under the civil service laws, he does so with knowledge that the appointment is subject to such

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

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

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

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Without doing so, Petitioner's out-of-class experience while performing in the class of Legal
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Analyst, if any, cannot be used or considered as qualifying experience for minimum qualifications
analysis towards her pursuit of a Special Investigator position.^
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

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Investigator.

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MQs for the Classification of Consultant III.

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Petitioner iu^gues that she met two patterns for the MQs for the classification of Consultant

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Ifl- The two patterns are as follows:

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

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* In fact, Personnel Officer Tyra Gilmer properly approved an out-of-class assignment for Petitioner to
perform the duties ofthe FEH Administralor I position from May 1, to August 28, 2012, while she was in Consultant
HI position. (AR, p. 473.)
'' Additionally, Petitioner did not dispute the SPB's llnding that her paralegal experience in ihe private sector
is non-qualifying.

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OPPOSITION OF THE CALIFORNIA STATE PERSONNEL BOAR D TO PETITION F(JR WRVT OE MANDATE (34-2014-8000181S)

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Pattern I I - 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.)

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

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

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

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

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"comparable to," implying that Petitioner would need to be in the classification of Consultant I I

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

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

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

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must prefer statutory inteipretations which harmonize and reconcile potentially conflicting

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

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

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

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

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

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

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

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

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

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

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

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

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

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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 MANDATE (:W-2014-80001818)

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

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

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

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

responsibility equal to Consultant II.

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

basis.

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

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

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

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which Petitioner undoubtedly lacked.

In addition, Petitioner was required to have a college

Since Petitioner did not have a college degree at the time she applied for Consultant III

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

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

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

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was unlawful and must be voided.

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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

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Services Manager (SSM) II examination list to fill the Administrator I position. (AR, p. 476, fn

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

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

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

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

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qualifications to her appointment to the Administrator 1 position. Petitioner only argues that "if

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

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also be lawful because [under] the MQs it would be qualifying experience."

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

(Petitioner's

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OPPOSITION OFTHE CALIFORNIA ST.ATE PERSONNEL BOARD TO PETITION FOR WRIT OF MANDATE (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.

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

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

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

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

MOs for Administrator I

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Pattern I - One year of experience in the California state service performing

the duties of a Fair Employment and Housing Consultant UI (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.

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

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

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(AR, pp. 473, 653-654, 619.)

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

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

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Therefore, Petitioner only worked in the classification of

Since Petitioner must meet both MQs for the Staff Services Manager II classification and
the Administrator I , her lack of qualification for either classification makes her ineligible for the

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appointment to the position of Administrator I .

Accordingly, the SPB's decision voiding Petitioner's appointments to Consultant III and
Administrator I must be upheld.

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B. DFEH's failure to exercise due diligence in ascertaining Petitioner's minimum

qualification for the Consultant III position constitutes "other than good faith"
under 2 CCR 8.
California Code of Regulations, title 2, 266 authorizes the SPB to void an unlawful

24 "
appointment within five years of the appointment if the employer is found to have acted in other
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than good faith. Section 8 under title 2 of the California Code of Regulations provides further
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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 PI-:RS0NNEL BOARD Tl ) PETITION FOR WRIT Oi- MANDATE (34-20l4-X00()181 8)

(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
elisibles.

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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

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

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

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

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

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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

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

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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

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both the Special Investigator and Consultant III positions. When Chris Thomas, another DFEH
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OPI'OSITION OFTHE CALIFORNIA .STA PE PERSONNEL BOARD I O PETITION FOR WRIT OF MANDATE (34-2014-80001818j

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

4
fence" regarding Petitioner's qualifications, and even when faced with internal complaints about
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Petitioner's fast ascent, she failed to consult with the authorities in the field of selection and

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

laws that were plainly available to her.

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

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

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promotions to both classifications of Consultant III and Administrator I with unverified MQs, and
DFEH's quick dispelling of internal complaints, point to the inevitable conclusion that Petitioner

13
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.

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

18

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

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to understand that credibility determination is unnecessary in this case.

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The witnesses'

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

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whole, failed to exercise due diligence to ascertain Petitioner's appointment eligibility, and failed
to observe or intentionally disregarded the law even when they questioned or had doubts about

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Petitioner's qualifications.

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

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Petitioner's appointments.
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///

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OPPOSrni )N OFTHE CALIFORNIA STATE PERSONNEL BOARD TO PBTITION FOR WRI T OF" MANDATE (34-2014-80001818)

CONCLUSION

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DFEH circumvented the civil service laws when it appointed Petitioner, a Legal Analyst,
to the positions of Consultant III and then Administrator I. DFEH did so without verifying, in

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good faith. Petitioner's minimum qualifications.

As such. Petitioner's appointments were

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^
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properly voided and her writ of administrative mandamus and damages must be denied.
Date: August 14, 2014

Respectfully Submitted,
ALVIN GITTISRffiOONGUL

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CHIAN HE
Senior Attorney
Attorneys For Respondent
California State Personnel Board

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

DECLARATION OF SERVICE
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Case Name:

Angelina Endsley v. California State Personnel Board

CaseNo.:

34-2014-80001818

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I am employed in County of Sacramento, California. I am over the age of 18 years and

not a party to the within action. My business address is 801 Capitol Mall, Legal - MS - 53,
Sacramento, California 95814.
I am familiar with the practice of this office whereby the mail is sealed, given the
appropriate postage and placed in a designated mail collection area. The mail is thereafter
deposited in a United States mailbox at the close of each business day.

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

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OPPOSITION OF THE CALIFORNIA STATE PERSONNEL BOARD TO

PETITION FOR WRIT OF MANDATE

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On the parties addressed below:

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U.S. Mail
Patricia Tsubokawa Reeves
Law Office of PTR
P.O. Box 1407
Davis, CA 95617-1407
Golden State Overnight
Sacramento County Superior Court
720 9"" Street
Sacramento, CA 95814

9Q
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The following is the procedure in which service of this document was effected:
[X] (By United States mail)
U.S. Postal Service (Placing sealed envelope with postage thereon fully prepared
in the designated ai'ea for out-going mail in accordance with this office's practice,
whereby mail deposited in a U.S. mailbox in Sacramento County, at the close of
the business day.)

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[X] (By overnight delivery)

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

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placed the envelope or package for collection and overnight delivery at an office or
a 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 MANDATE (34-2014-80001818)

[ ] (By personal service)

I caused such envelope to be delivered by hand to the location(s) of the
addressee(s), as listed above.

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[ ] (By facsimile)
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
electronic transmission, I caused the document to be sent to the person(s) at the
electronic notification addresses listed above. I did not receive, within a
reasonable time after the transmission, any electronic message or other indication
that the transmission was unsuccessful.

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I declare under penalty of perjury that the foregoing is true and correct, and that this
declaration was executed at Sacramento, California on August 15, 2014.

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C. RUBIO
Declarant

Signature

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OPPOSITION Ol- TIIE CALIFORNIA .S'TA'TE PERSONNEL HOARD TO PETITION I'OR WRTTOF MAND.'XTE (34-2014-80001818)