State Personnel Board Resolution and Order Following Investigative Hearing Case 13-1216A

8/12/2019 State Personnel Board Resolution and Order Following Investigative Hearing Case 13-1216A

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l PERSONN EL6 i BOARD801 Capitol Mali Sacramento, CA 95814 l www.spb.ca.gov Governor Edmund G. Brown Jr. Investigation Arising from the Matter of the | Case No. 13-1216ACivil Service Appointments Rendered by theBOARD RESOLUTION AND ORDERCALIFORNIA DEPARTMENT OF FAIR I FOLLOWING INVESTIGATIVEEMPLOYMENT AND HOUSING I HEARINGforANGELINA ENDSLEYOn January 23, 2014, the State Personnel Board (SPB or Board) adopted theProposed Decision filed by the Staff Hearing Officer (SHO) in the case of 13-1216N,finding that the California Department of Fair Employment and Housing (DFEH) failed toact in good faith in appointing Angelina Endsley (Endsley) to the positions of DFEHConsultant lli (Specialist) and DFEH Administrator I. Based on that finding, the Boardissued a Board Resolution and Order directing the Chief Administrative Law Judge orhis designee to conduct further investigation into the actions of DFEH involved

personnel and make findings as to whether disciplinary actions are warranted againstthose individuals.After conducting an investigation, on July 2, 2014, SPBs Administrative LawJudge (ALJ) submitted to the Board an Investigative Report pursuant to the January 23,2014, Board Resolution and Order. The five-member Board carefully considered theInvestigative Report and issues this further resolution and order.ITIS RESOLVED AND ORDERED that:1. The investigation conducted by the assigned ALJ covered tive separateindividuals employed during the relevant period by DF EH who played a role inthe appointments of Endsley. Upon Conclusion of the investigation, the ALJStale of California | Government Operaiions Agency | Siate Personnei Board

Executive Office 916-653-1028 Appeals Division 916-653-0799 Compliance ReviewlPoicy Divisions 916651-02324 Legal

Office 916-653-1403


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DF EH Investigative Report Angelina EndsleyCase No. 13-1216A


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DFEH Investigative Report Angelina EndsleyCaSe N0. 13-1216A


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Page 35. Pursuant to its authority under Government Code sections 19572, 195835,and/or 19682, the Board deems the Investigative Report a charging documentunder Government Code section 19683 setting forth the alleged misconductor inappropriate activities on the part of Gilmer and Rea.6. The Board refers the case to the Chief Administrative Law Judge or hisdesignee to conduct evidentiary hearings, affording Gilmer and Rea their due

process rights, to determine whether charges against Gilmer and Rea underGovernment Code section 19572 can be sustained, and if so, what the justand proper penalties are for the proven misconduct. The Chief AdministrativeLaw Judge or his designee shall submit a Proposed Decision after theevidentiary hearings to the Board for review and adoption.7. The ALJs Investigative Report is attached and served on the parties togetherwith this resolution and order.STATE PERSONNEL BOARD

Patricia Clarey, President Kimiko Burton, Vice President Richard Costigan, MemberLauri Shanahan, Member Maele-y Tom, Member


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DFEH Investigative Report Angelina EndsleyCase No. 13-1216A


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Page 4The foregoing Board Resolution and Order Following investigative Hearing wasmade and adopted by the State Personnel Board, during its meeting of July 2, 2014, asreflected in the record of the meeting and Board minutes.IslSUZANNE AMBROSE Executive Officer


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Investigation Arising From the Matter of the | Case No. 13-1216A Civil Service Appointments Rendered by the

INVESTIGATIVE REPORT CALIFORNIA

DEPARTMENT OF FAIR EMPLOYMENT AND HOUSING


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ForANGELINA ENDSLEYINTRODUCTIONDuring its meeting of January 23, 2014, the State Personnel Board (Board orSPB) issued its Resolution and Order in SPB Case No. 13-1216N (ln the Matter of theCivil Sen/ice Appointments Rendered by the California Department of Fair Employmentand Housing for Ange/ina Ends/ey), wherein, as the result of an audit and subsequenthearing Conducted by SPB staff, the Board determined, among other things, that theDepartment of Fair Employment and Housing (DFEH) had acted in bad faith whenappointing one of its employees, Angelina Endsley (Endsley), to the FEH Consultant |||,Specialist, (Consultant III) olassiflcation, and later to the Administrator | classification.More particularly, the Board determined that because Endsley derived her eligibility forappointment to the Consultant Ill classification through the Special Investigator eligibilitylist which DFEH was using as an appropriate list for making suoh appointments -Endsley needed to meet the minimum qualitioation patterns for both the SpecialInvestigator and Consultant ||| classifications. Although Endsley appeared to meet theminimum qualifications for appointment to the Special Investigator classicaton, theBoard determined that she did not meet the minimum qualifications for appointment tothe Consultant ||| classification, since that classification required, among other things,that candidates have experience as a Consultant DFEH had determined that,


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Page 2 of 59although Endsley had not been employed as a Consultant and instead was employedas a Legal Analyst, she had been performing the duties of a Consultant Il. Therefore,DFEH credited the time Endsley spent as a Legal Analyst as time spent as a Consultant||. The Board specifically found it was improper for DFEH to have done so and,therefore, deemed the appointment to have been illegal. As part of its Resolution andOrder, the Board issued the following directive:This matter is referred to the Chief Administrative Law Judge or his designee for the purpose of investigating the actions of

current or former DFEH personnel involved in Endsleys unlawful appointments as identified in the adopted Proposed Decision.

Following the investigation, the Chief Administrative Law Judge or his designee shall prepare findings and make

recommendations on Whether disciplinary actions against any individuals that are the subject of this investigation are

appropriate. The findings and recommendations shall be submitted to the Executive Officer or her designee. ln accordance with

Title 2, California Code of Regulations, section 8, the Executive Officer or her designee may direct that adverseaction be taken against any individuals as may be recommended.The Chief Administrative Law Judge (CALJ) thereafter assigned the matter toAdministrative Law Judge (ALJ), Bruce A. Monfross, for purposes of conducting theBoard-ordered investigation. The following current or former DFEH personnel wereidentified as appropriate subjects for investigation, as they all had a role in Endsleysappointments to the two classifications in question: Deputy Director - AdministrativeServices, Monica Rea (Rea); Chief Enforcement Officer Tim Muscat (Muscat);Personnel/Labor Relations Officer Tyra Gilmer (Gilmer); Associate Personnel AnalystRobin lcelow (|celow); and Associate Personnel Analyst Chris Thomas (Thomas).11 At the time of the investigation, Muscat was employed as a Deputy Attorney General at the Department of Justice, Gilmer was

employed as a Staff Services Manager at the California Department of Corrections Health Care Services, and lcelow was

employed as an Associate Personnel Specialist at the Department of Housing and Community Development. Rea and Thomas

remained employed at DFEH.


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Investigative ReportCase No. 13-1216A


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Page 3 of 59Because the Boards decision in SPB Case No. 13-1216N concluded that the

primary infirmity with respect to Endsleys appointment to the Administrator |classification was the fact that her prior appointment to the Consultant ||| classificationwas illegal, this investigation focused primarily on the circumstances underlyingEndsleys appointment to the Consultant ||| classification. The investigation entailedreviewing all documents submitted to the SPB by DFEH in SPB Case No. 13-1216N,and issuing subpoenas for additional document production; and for conductinginvestigative interviews of Rea, Muscat, Gilmer, lcelow, Thomas, and Endsley.2LEGAL AUTHORITYThe merit system of employment in Californias state government is set forth inArticle VII of the California Constitution, section 1, subdivision (b) which provides that

permanent appointment and promotion in the state civil service "shall be made under ageneral system based on merit ascertained by competitive examination. (CaliforniaState Personnel Board v. California State Employees Assn, Local 1000, SEIU, AFLCIO (SPB v. CSEA) (2005) 36 Cal.4th 758, 764, quoting Cal. Const., art. VII, section 1,subd. (b).) The constitutionally-mandated merit principle of employment was adopted

by California voters in 1934 in an effort to eliminate the spoils system of politicalpatronage from state employment and to ensure that all appointments and promotionsin state service be made solely on the basis of merit. (ld., quoting Pacific LegalFoundation V. Brown (1981) 29 Ca|.3d 168, 182-184). Article VII of the Constitution also2 The investigative interviews were originally scheduled to be conducted on February 24-26, 2014; however, the legal

representatives for Rea, Muscat, Gilmer, and Icelow requested a continuance of the interviews for purposes of determining

whether a conflict existed n representing the individuals collectively. A one-week continuance was granted, and the interviewsfor those individuals were conducted on March 4-6, 2014.


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Investigative ReportCase No. 13-1216A


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Page 4 of 59mandated the creation of a non-partisan personnel board (the SPB) to enforce the ovilService Statutes (Cal. Const., art. Vll, 2, 3, (Subd. (a)), aS Well aS an executive officerto administer all applicable StatuteS and ruleS under the Boards authority. (Cal. Const.,art. Vll, 2, Subd. (o), 3, Subd. (b).)ln order to implement the inviolate merit principle of employment in Stategovernment, the Legislature passed the State Civil Service Act (Gov. Code 18500 etseq.), the purpose of which is to ensure that appointments to state office are made onthe basis of merit, as ascertained by competitive examination, which has beendescribed as the cornerstone of the merit principle. (SPB v. CSEA, supra, 36 Ca|.4that 765, citing State Personnel Board v. Fair Employment and Housing Commission(1985) 39 Ca|.3d 422, 432, and Alexander v. State Personnel Board (2000) 80Ca|.App.4th 526, 542.)The State Civil Service Act authorizes the SPB to, among other things, conductaudits (Gov. Code 18660-18662) and investigations (Gov. Code 18670-18683)concerning Whether appointing powers have complied with state merit principles whenmaking appointments to the state civil service. More specifically, with respect to theSPBs audit authority, Government Code section 18661 provides:(a) The board may conduct an audit of any appointing authoritys personnel practices to ensure compliance with the civil service

laws and board regulations. The board may audit selection and examination procedures, appointments, promotions, the

management of probationary periods, personal services contracts, discipline and adverse actions, or any other area related to the

operation of merit principle in state civil service.(b) When conducting an audit, the board may inspect documents, policies,

practices, and procedures of the appointing authority relating to its personnel practices and interview appointing authority staff

and Witnesses


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Investigative Report Case No. 13-1216A Page 5 of 59

regarding the subject of the audit. Failure by an appointing authority to cooperate with an audit may result in corrective action.


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(c) Upon completion of the audit, the board may provide a report to the appointing authority and the department, identifying any

deficiencies in the appointing authority's personnel practices, policies, and procedures.(d) lf the board finds an appointing authority deficient in personnel practices, policies, and procedures, the appointing authority

shall be subject to corrective action. The board may order remedies including, but not limited to, any or of the following:(1) Revocation or modification of the terms of the delegation agreement between the appointing authority and the department.(2) That the appointing authority compensate the department for the actual and necessary cost of any and all of the personnelfunctions the department performs and training and supervision the department provides on behalf of the appointing authority,

either permanently or for a specifled term.(3) Void examinations administered by the appointing authority, abolish eligibility lists, and void appointments made therefrom.(4) Seek approval from the Department of Finance for redirection to the department of a sufficient number of the appointing

authoritys positions to perform all personnel related functions formerly performed by the appointing authority.With respect to the SPBs investigative authority, Government Code section18670 provides:The board may hold hearings and make investigations concerning all matters relating to the enforcement and effect of this part

and rules prescribed under this part. It may inspect any state institution, ofce, or other place of employment affected by this part

to ascertain whether this part and the board rules are obeyed.The board shall make investigations and hold hearings at the direction of the Governor or the Legislature or upon the petition of

an employee or a citizen concerning the enforcement and effect of this part and to enforce the observance of Article VII of the

Constitution and of this part and the rules made under this part.


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Investigative Report Case No. 13-1216A Page 6 of 59

Government Code section 18671 further provides:


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Such hearings and investigations may be conducted by the board, any member, or any authorized representative of the board.

Any authorized person conducting such hearing or investigation may administer oaths, subpoena and require the attendance of

Witnesses and the production of books or papers, and cause the depositions of Witnesses residing Within or Without the state to

be taken in the manner prescribed by law for like depositions in civil cases in the superior court of this state under Title 4

(commencing with Section 2016.010) of Part 4 of the Code of Civil Procedure.Additionally, Government Code section 18676 provides:When ordered to do so, a Witness shall not be excused from testifying or from producing any documentary evidence in that

investigation or hearing upon the ground that the testimony or documentary evidence required ofthe witness may tend to incriminate or subject the Witness to penalty orforfeiture, provided the Witness has been granted use and derivative use,or transactional immunity by the appropriate law enforcement authority.Moreover, in accordance with Lybarger v. City of Los Angeles (1985) 40 Ca|.3d 822,state employees may be disciplined for insubordination for refusing to answer questions

presented to them during an investigation by the Board or its designated representative.Finally, Government Code section 18679 provides, The board and any personauthorized by it to conduct a hearing or investigation is the head of a department Withinthe meaning of Article 2, Chapter 2, Part 1, Division 3, Title 2."Because the instant investigation arose from an audit conducted by the SPB, thisinvestigation was conducted in accordance with the SPB's investigative and auditauthority.//////

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State Personnel Board Resolution and Order Following Investigative Hearing Case 13-1216A