DEPARTMENT OF JUSTICEPursuant to Government Code section 18661, the SPB’s Compliance Review Unit...

COMPLIANCE REVIEW REPORT

DEPARTMENT OF JUSTICE

Compliance Review Unit State Personnel Board November 03, 2020

TABLE OF CONTENTS

Introduction ..................................................................................................................... 1

Executive Summary ........................................................................................................ 2

Background ..................................................................................................................... 4

Scope and Methodology .................................................................................................. 4

Findings and Recommendations ..................................................................................... 6

Examinations ............................................................................................................. 6

Permanent Withhold Actions ...................................................................................... 9

Appointments ........................................................................................................... 11

Equal Employment Opportunity ............................................................................... 23

Personal Services Contracts .................................................................................... 24

Mandated Training ................................................................................................... 29

Compensation and Pay ............................................................................................ 31

Leave ....................................................................................................................... 59

Policy and Processes ............................................................................................... 75

Departmental Response ................................................................................................ 81

SPB Reply ..................................................................................................................... 81

1 SPB Compliance Review Department of Justice

INTRODUCTION Established by the California Constitution, the State Personnel Board (the SPB or Board) is charged with enforcing and administering the civil service statutes, prescribing probationary periods and classifications, adopting regulations, and reviewing disciplinary actions and merit-related appeals. The SPB oversees the merit-based recruitment and selection process for the hiring of over 200,000 state employees. These employees provide critical services to the people of California, including but not limited to, protecting life and property, managing emergency operations, providing education, promoting the public health, and preserving the environment. The SPB provides direction to departments through the Board’s decisions, rules, policies, and consultation. Pursuant to Government Code section 18661, the SPB’s Compliance Review Unit (CRU) conducts compliance reviews of appointing authorities’ personnel practices in five areas: examinations, appointments, equal employment opportunity (EEO), personal services contracts (PSC’s), and mandated training, to ensure compliance with civil service laws and Board regulations. The purpose of these reviews is to ensure state agencies are in compliance with merit related laws, rules, and policies and to identify and share best practices identified during the reviews. Pursuant to Government Code section 18502, subdivision (c), the SPB and the California Department of Human Resources (CalHR) may “delegate, share, or transfer between them responsibilities for programs within their respective jurisdictions pursuant to an agreement.” SPB and CalHR, by mutual agreement, expanded the scope of program areas to be audited to include more operational practices that have been delegated to departments and for which CalHR provides policy direction. Many of these delegated practices are cost drivers to the state and were not being monitored on a statewide basis. As such, SPB also conducts compliance reviews of appointing authorities’ personnel practices to ensure that state departments are appropriately managing the following non-merit-related personnel functions: compensation and pay, leave, and policy and processes. These reviews will help to avoid and prevent potential costly litigation related to improper personnel practices, and deter waste, fraud, and abuse. The SPB conducts these reviews on a three-year cycle. The CRU may also conduct special investigations in response to a specific request or when the SPB obtains information suggesting a potential merit-related violation.


It should be noted that this report only contains findings from this hiring authority’s compliance review. Other issues found in SPB appeals and special investigations as well as audit and review findings by other agencies such as the CalHR and the California State Auditor are reported elsewhere.

EXECUTIVE SUMMARY The CRU conducted a routine compliance review of the Department of Justice (DOJ) personnel practices in the areas of examinations, appointments, EEO, PSC’s, mandated training, compensation and pay, leave, and policy and processes. The following table summarizes the compliance review findings.

Area Finding

Examinations Candidate Who Did Not Meet the Minimum Qualifications

Was Admitted Into the Examination

Examinations Permanent Withhold Actions Complied with Civil Service

Laws and Board Rules

Appointments Unlawful Appointments

Appointments Inappropriate Appointment by Way of Transfer

Appointments Position(s) Were Improperly Filled by Training and

Development Assignments

Appointments Probationary Evaluations Were Not Provided for All

Appointments Reviewed and Those That Were Reviewed Were Untimely1

Appointments Appointment Documentation Was Not Kept for the

Appropriate Amount of Time2

Equal Employment Opportunity

Equal Employment Opportunity Program Complied with All Civil Service Laws and Board Rules

Personal Services Contracts

Unions Were Not Notified of Personal Services Contract

Mandated Training Ethics Training Was Not Provided for All Filers

1 Repeat finding. June 20, 2016, the DOJ’s Compliance Review Report identified 30 missing probation reports out of the 144 appointment files reviewed. 2 Repeat finding. June 20, 2016, report identified the following documents were not retained in the 144 DOJ appointment files reviewed: 19 job bulletins, 21 Notices of Personnel Action (NOPA), 7 hired applicant applications, and 2 appointment files where all but the hired applicant’s application were missing.


Area Finding

Mandated Training Sexual Harassment Prevention Training Was Not

Provided for All Supervisors

Compensation and Pay Incorrect Application of Salary Determination Laws,

Rules, and CalHR Policies and Guidelines for Appointment

Compensation and Pay Exceptions to Salary Rules Complied with Civil Service Laws, Board Rules, and CalHR Policies and Guidelines

Compensation and Pay Alternate Range Movements Did Not Comply with Civil Service Laws, Board Rules, and/or CalHR Policies and

Guidelines

Compensation and Pay Incorrect Authorization of Hire Above the Minimum

Request

Compensation and Pay Red Circle Rate Authorizations Complied with Civil

Service Laws, Board Rules, and CalHR Policies and Guidelines

Compensation and Pay Arduous Pay Authorization Complied with Civil Service

Laws, Board Rules, and/or CalHR Policies and Guidelines

Compensation and Pay Bilingual Pay Authorization Complied with Civil Service


Compensation and Pay Incorrect Authorization of Pay Differentials

Compensation and Pay Incorrect Authorization of Out-of-Class Pay

Leave Positive Paid Employees Exceeded the Nine Month Limitation in Any Twelve Consecutive Month Period

Leave Administrative Time Off (ATO) Was Not Properly

Documented

Leave Department Has Not Implemented a Monthly Internal

Audit Process to Verify All Leave Input Is Keyed Accurately and Timely

Leave Leave Reduction Plans Complied with Civil Service Laws,

Board Rules, and CalHR Policies and Guidelines

Leave Service and Leave Transactions Complied with Civil

Service Laws, Board Rules, and/or CalHR Policies and Guidelines

Policy Nepotism Policy Complied with Civil Service Laws, Board

Rules, and/or CalHR Policies and Guidelines

Policy Workers’ Compensation Process Complied with Civil

Service Laws, Board Rules, and/or CalHR Policies and Guidelines


Area Finding

Policy Performance Appraisals Were Not Provided to All

Employees A color-coded system is used to identify the severity of the violations as follows:

Red = Very Serious Orange = Serious Yellow = Technical Green = In Compliance

BACKGROUND

The California Constitution establishes the Attorney General (AG) as the state’s chief law enforcement officer, responsible for ensuring that the laws of the state are uniformly and adequately enforced through its complex criminal and civil investigations and prosecutions. The AG is vested with broad powers and carries out these important responsibilities through the California DOJ, which is comprised of approximately 5,500 deputy attorneys general, investigators, sworn peace officers, information technology specialists, and administrative/support staff who work in one of seven statewide divisions. The DOJ operates statewide with major law offices and law enforcement operations in Sacramento, Fresno, San Francisco, Oakland, Los Angeles, and San Diego. It is an organization that operates twenty-four hours a day to make California a better place to live, work, and raise a family. It is the DOJ’s duty to serve California and work honorably each day by applying all laws fairly and impartially, safeguarding the public from violent criminals, and ensuring justice.

SCOPE AND METHODOLOGY The scope of the compliance review was limited to reviewing the DOJ’s examinations, appointments, EEO program, PSC’s, mandated training, compensation and pay, leave, and policy and processes3. The primary objective of the review was to determine if the DOJ’s personnel practices, policies, and procedures complied with state civil service laws and Board regulations, Bargaining Unit Agreements, CalHR policies and guidelines, CalHR Delegation Agreements, and to recommend corrective action where deficiencies were identified.

3 Timeframes of the compliance review varied depending on the area of review. Please refer to each section for specific compliance review timeframes.


A cross-section of the DOJ’s examinations were selected for review to ensure that samples of various examination types, classifications, and levels were reviewed. The CRU examined the documentation that the DOJ provided, which included examination plans, examination bulletins, job analyses, and scoring results. The CRU also reviewed the DOJ’s permanent withhold actions documentation, including Withhold Determination Worksheets, State applications (STD 678), class specifications, and withhold letters. A cross-section of the DOJ’s appointments were selected for review to ensure that samples of various appointment types, classifications, and levels were reviewed. The CRU examined the documentation that the DOJ provided, which included NOPA forms, Request for Personnel Actions (RPA), vacancy postings, certification lists, transfer movement worksheets, employment history records, correspondence, and probation reports. The DOJ did not conduct any unlawful appointment investigations during the compliance review period. Additionally, the DOJ did not make any additional appointments during the compliance review period. The DOJ’s appointments were also selected for review to ensure the DOJ applied salary regulations accurately and correctly processed employees’ compensation and pay. The CRU examined the documentation that the DOJ provided, which included employees’ employment and pay history and any other relevant documentation such as certifications, degrees, and/or the appointee’s application. Additionally, the CRU reviewed specific documentation for the following personnel functions related to compensation and pay: hiring above minimum (HAM) requests, red circle rate requests, arduous pay, bilingual pay, monthly pay differentials, alternate range movements, and out-of-class assignments. The review of the DOJ’s EEO program included examining written EEO policies and procedures; the EEO Officer’s role, duties, and reporting relationship; the internal discrimination complaint process; the reasonable accommodation program; the discrimination complaint process; and the Disability Advisory Committee (DAC). The DOJ’s PSC’s were also reviewed.4 It was beyond the scope of the compliance review to make conclusions as to whether the DOJ’s justifications for the contracts were legally sufficient. The review was limited to whether the DOJ’s practices, policies, and procedures relative to PSC’s complied with procedural requirements.

4If an employee organization requests the SPB to review any personal services contract during the SPB compliance review period or prior to the completion of the final compliance review report, the SPB will not audit the contract. Instead, the SPB will review the contract pursuant to its statutory and regulatory process. In this instance, none of the reviewed PSC’s were challenged.


The DOJ’s mandated training program was reviewed to ensure all employees required to file statements of economic interest were provided ethics training, and that all supervisors, managers, and Career Executive Assignments (CEA) were provided sexual harassment prevention training within statutory timelines.

The CRU also identified the DOJ’s employees whose current annual leave, or vacation leave credits, exceeded established limits. The CRU reviewed a cross-section of these identified employees to ensure that employees who have significant “over-the-cap” leave balances have a leave reduction plan in place. Additionally, the CRU asked the DOJ to provide a copy of their leave reduction policy. The CRU reviewed the DOJ’s Leave Activity and Correction Certification forms to verify that the DOJ created a monthly internal audit process to verify all leave input into any leave accounting system was keyed accurately and timely. The CRU selected a small cross-section of the DOJ’s units in order to ensure they maintained accurate and timely leave accounting records. Part of this review also examined a cross-section of the DOJ’s employees’ employment and pay history, state service records, and leave accrual histories to ensure employees with non-qualifying pay periods did not receive vacation/sick leave and/or annual leave accruals or state service credit. Additionally, the CRU reviewed a selection of the DOJ employees who used Administrative Time Off (ATO) in order to ensure that ATO was appropriately administered. Further, the CRU reviewed a selection of DOJ positive paid employees whose hours are tracked during the compliance review period in order to ensure that they adhered to procedural requirements. Moreover, the CRU reviewed the DOJ’s policies and processes concerning nepotism, workers’ compensation, and performance appraisals. The review was limited to whether the DOJ’s policies and processes adhered to procedural requirements. On August 25, 2020, an exit conference was held with the DOJ to explain and discuss the CRU’s initial findings and recommendations. The CRU received and carefully reviewed the DOJ’s written response on September 11, 2020, which is attached to this final compliance review report.

FINDINGS AND RECOMMENDATIONS

Examinations Examinations to establish an eligible list must be competitive and of such character as fairly to test and determine the qualifications, fitness, and ability of competitors to perform


the duties of the class of position for which he or she seeks appointment. (Gov. Code, § 18930.) Examinations may be assembled or unassembled, written or oral, or in the form of a demonstration of skills, or any combination of those tests. (Ibid.) The Board establishes minimum qualifications for determining the fitness and qualifications of employees for each class of position and for applicants for examinations. (Gov. Code, § 18931, subd. (a).) Within a reasonable time before the scheduled date for the examination, the designated appointing power shall announce or advertise the examination for the establishment of eligible lists. (Gov. Code, § 18933, subd. (a).) The advertisement shall contain such information as the date and place of the examination and the nature of the minimum qualifications. (Ibid.) Every applicant for examination shall file an application with the department or a designated appointing power as directed by the examination announcement. (Gov. Code, § 18934, subd. (a)(1).) The final earned rating of each person competing in any examination is to be determined by the weighted average of the earned ratings on all phases of the examination. (Gov. Code, § 18936.) Each competitor shall be notified in writing of the results of the examination when the employment list resulting from the examination is established. (Gov. Code, § 18938.5.) During the period under review, February 1, 2019, through July 30, 2019, the DOJ conducted 11 examinations. The CRU reviewed nine of those examinations, which are listed below:

Classification Exam Type Exam Components Final File

Date No. of Apps

Associate Personnel Analyst

Promotional Training and

Experience (T&E) 5 5/29/2019 18

CEA B, Chief Assistant Attorney General, Public Rights Division

CEA Statement of Qualifications

(SOQ)6 7/25/2019 8

CEA B, Senior Assistant Attorney General, Health Education and Welfare Section

CEA SOQ 5/21/19 11

5 The Training and Experience examination is administered either online or in writing, and asks the applicant to answer multiple-choice questions about his or her level of training and/or experience performing certain tasks typically performed by those in this classification. Responses yield point values. 6 In a Statement of Qualifications examination, applicants submit a written summary of their qualifications and experience related to a published list of desired qualifications. Raters, typically subject matter experts, evaluate the responses according to a predetermined rating scale designed to assess their ability to perform in a job classification, assign scores and rank the competitors in a list.


Classification Exam Type Exam Components Final File

Date No. of Apps

Criminal Identification Specialist I

Open Written7 2/11/2019 370

Criminal Identification Specialist II

Open Written 2/19/2019 88

Criminal Intelligence Specialist III

Open

Written & Qualification

Appraisal Panel (QAP)8

4/9/2019 53

Program Technician III Promotional Written 5/30/2019 52

Security Officer II, Department of Justice

Departmental Promotional

QAP 4/2/2019 4

Special Agent, Department of Justice

Open Written &

Performance9 4/10/2019 42


Open Written &

Performance 7/8/2019 16

Supervising Deputy Attorney General

Promotional T&E 4/19/2019 58

FINDING NO. 1 – Candidate Who Did Not Meet the Minimum Qualifications Was

Admitted Into the Examination Summary: The DOJ admitted one candidate who did not meet minimum

qualifications into the promotional Supervising Deputy Attorney General exam.

Criteria: According to Human Resources Manual Section 3002, during the

examination process and before appointment, information submitted in the application process from all candidates, except those who are

7 A written examination is a testing procedure in which candidates’ job-related knowledge and skills are assessed through the use of a variety of item formats. Written examinations are either objectively scored or subjectively scored. 8 The Qualification Appraisal Panel interview is the oral component of an examination whereby competitors appear before a panel of two or more evaluators. Candidates are rated and ranked against one another based on an assessment of their ability to perform in a job classification. 9 A Performance examination requires applicants to replicate/simulate job related tasks or duties.


on reemployment lists or who have reinstatement rights, must be evaluated for verification of meeting the minimum qualifications of the classification established by the Board.

Additionally, except as otherwise provided by law or regulation, any person who establishes that he or she satisfies the minimum qualifications for any state position, as defined in Government Code section 18522, is eligible, regardless of his or her age, to take any civil service examination given for that position. (Cal. Code Reg., tit. 2, § 171.2.)

Severity: Very Serious. Failure to verify minimum qualifications for candidates during the examination process may result in an unlawful appointment that wastes resources and incurs costs to the state.

Cause: The DOJ states that allowing the candidate into the examination was an oversight and is not their normal practice.

Corrective Action: Within 90 days of the date of this report, the DOJ must submit to the

SPB a written corrective action response which addresses the corrections the department will implement to ensure all candidates meet the minimum qualifications prior to admittance into an examination. Copies of relevant documentation demonstrating that the corrective action has been implemented must be included with the corrective action response.

Permanent Withhold Actions Departments are granted statutory authority to permit withhold of eligibles from lists based on specified criteria. (Gov. Code, § 18935.) Permanent appointments and promotions within the state civil service system shall be merit-based, ascertained by a competitive examination process. (Cal. Const., art. VII, § 1, subd. (b).) If a candidate for appointment is found not to satisfy the minimum qualifications, the appointing power shall provide written notice to the candidate, specifying which qualification(s) are not satisfied and the reason(s) why. The candidate shall have an opportunity to establish that s/he meets the qualifications. (Cal. Code Regs., tit. 2, § 249.4, subd. (b).) If the candidate fails to respond, or fails to establish that s/he meets the minimum qualification(s), the candidate’s name shall be removed from the eligibility list. (Cal. Code Regs., tit. 2, § 249.4, subd. (b)(1), (2)), (HR Manual, section 1105.) The appointing authority shall promptly notify the candidate in writing, and shall notify the candidate of his or her appeal rights. (Ibid.) A


permanent withhold does not necessarily permanently restrict a candidate from retaking the examination for the same classification in the future; however, the appointing authority may place a withhold on the candidate’s subsequent eligibility record if the candidate still does not meet the minimum qualifications or continues to be unsuitable. (HR Manual, Section 1105). State agency human resources offices are required to maintain specific withhold documentation for a period of five years. (Ibid.) During the review period, February 1, 2019, through July 30, 2019, the DOJ conducted nine permanent withhold actions. The CRU reviewed all of these permanent withhold actions, which are listed below:

Exam Title Exam ID Date List Eligibility Began

Date List Eligibility Ended

Reason Candidate Placed on Withhold

Information Technology Specialist I

7PB35 4/21/2019 4/21/2020 Failed to Meet

Minimum Qualifications

Legal Analyst 6PB11 4/29/2019 4/29/2020 Failed to Meet


Legal Secretary 5PB25 3/16/2019 3/16/2020 Failed to Meet


Program Technician II

2PB30 9/15/2018 9/15/2020 Failed to Meet



2PB30 11/18/2017 11/18/2019 Failed to Meet



2PB30 6/9/2018 6/9/2020 Failed to Meet


Research Data Analyst II

8PB38 3/28/2019 3/28/2020 Failed to Meet


Staff Services Analyst

7PB34 6/6/2018 6/6/2019 Failed to Meet


Staff Services Analyst

7PB34 11/14/2018 11/14/2019 Failed to Meet



FINDING NO. 2 – Permanent Withhold Actions Complied with Civil Service Laws and Board Rules

The CRU found no deficiencies in the permanent withhold actions undertaken by the department during the compliance review period. Appointments In all cases not excepted or exempted by Article VII of the California Constitution, the appointing power must fill positions by appointment, including cases of transfers, reinstatements, promotions, and demotions in strict accordance with the Civil Service Act and Board rules. (Gov. Code, § 19050.) The hiring process for eligible candidates chosen for job interviews shall be competitive and be designed and administered to hire candidates who will be successful. (Cal. Code Regs., tit. 2, § 250, subd. (b).) Interviews shall be conducted using job-related criteria. (Ibid.) Persons selected for appointment shall satisfy the minimum qualifications of the classification to which he or she is appointed or have previously passed probation and achieved permanent status in that same classification. (Cal. Code Regs., tit. 2, § 250, subd. (d).) While persons selected for appointment may meet some or most of the preferred or desirable qualifications, they are not required to meet all the preferred or desirable qualifications. (Ibid.) This section does not apply to intra-agency job reassignments. (Cal. Code Regs., tit. 2, § 250, subd. (e).) During the period under review, February 1, 2019, through July 30, 2019, the DOJ made 605 appointments. The CRU reviewed 204 of those appointments, which are listed below. The DOJ compliance review initially consisted of 103 appointments. The review of these appointments included examination of NOPA forms, Request for Personnel Actions (RPA), vacancy postings, certification lists, transfer movement worksheets, employment history records, correspondence, and probation reports in addition to ensuring that hired candidates met the MQ’s. Subsequently, an additional 101 appointments were selected for review to ensure that MQ’s were met and that the hired candidates had the appropriate eligibility for hire.

Classification Appointment

Type Tenure Time Base

No. of Appts.

Accounting Administrator I (Supervisor)

Certification List Permanent Full Time 1

Accounting Administrator III Certification List Permanent Full Time 1 Accounting Officer (Specialist)





No. of Appts.

Administrative Assistant I Certification List Permanent Full Time 1 Assistant Bureau Chief, Division of Law Enforcement, Department of Justice


Assistant Bureau Chief, Division of Law Enforcement, Department of Justice (Non-Peace Officer)


Associate Governmental Program Analyst


Associate Personnel Analyst


Auditor I Certification List Permanent Full Time 1 Business Service Assistant (Specialist)


Business Service Officer II (Supervisor)


CEA Certification List CEA Full Time 1 Criminal Identification and Intelligence Supervisor

Certification List Limited Term Full Time 3

Criminal Identification and Intelligence Supervisor






Criminal Identification Specialist III


Criminal Intelligence Specialist I


Criminal Intelligence Specialist II




Criminalist Certification List Permanent Full Time 7 Criminalist Manager Certification List Permanent Full Time 2 Criminalist Supervisor Certification List Permanent Full Time 1 Deputy Attorney General Certification List Permanent Full Time 1 Deputy Attorney General III Certification List Permanent Full Time 8 Deputy Attorney General IV Certification List Permanent Full Time 6




No. of Appts.

Deputy Attorney General V Certification List Permanent Full Time 3 Digital Print Operator I Certification List Permanent Full Time 1 Executive Secretary I Certification List Permanent Full Time 1 Field Representative, Department of Justice


Information Officer I (Specialist)


Information Technology Associate


Information Technology Manager II




Information Technology Specialist II


Information Technology Specialist III


Information Technology Supervisor II


Information Technology Technician


Investigative Auditor II, Department of Justice


Investigative Auditor III, Department of Justice


Legal Analyst Certification List Permanent Full Time 1 Legal Secretary Certification List Permanent Full Time 4 Legal Support Supervisor I Certification List Permanent Full Time 2 Library Technical Assistant I


Office Assistant (General) Certification List Permanent Full Time 1 Office Technician (General) Certification List Permanent Full Time 2 Office Technician (Typing) Certification List Permanent Full Time 5 Personnel Specialist Certification List Permanent Full Time 1 Personnel Technician I Certification List Permanent Full Time 1 Program Technician Certification List Permanent Full Time 1 Program Technician II Certification List Permanent Full Time 5 Program Technician III Certification List Permanent Full Time 1 Property Controller II Certification List Limited Term Full Time 1 Property Controller II Certification List Permanent Full Time 1 Research Data Analyst I Certification List Permanent Full Time 3 Research Data Analyst II Certification List Permanent Full Time 2




No. of Appts.

Research Data Specialist I Certification List Permanent Full Time 2 Security Officer I, Department of Justice


Senior Criminalist Certification List Permanent Full Time 2 Senior Legal Analyst Certification List Permanent Full Time 3 Senior Legal Typist Certification List Permanent Full Time 3 Senior Personnel Specialist Certification List Limited Term Full Time 1 Special Agent Supervisor, Department of Justice




Special Agent-In-Charge, Department of Justice


Staff Management Auditor Certification List Permanent Full Time 1 Staff Services Analyst (General)


Staff Services Manager I Certification List Permanent Full Time 5 Staff Services Manager II (Supervisory)


Staff Services Manager III Certification List Permanent Full Time 1 Supervising Deputy Attorney General


Supervising Program Technician II


Supervising Program Technician III



Demotion Permanent Full Time 1

Deputy Attorney General IV Reinstatement Permanent Full Time 1 Deputy Attorney General V Reinstatement Permanent Full Time 1 Office Technician (Typing) Reinstatement Permanent Full Time 1 Program Technician III Reinstatement Permanent Full Time 1

Personnel Supervisor I Training and Development

Permanent Part Time 1

Program Technician III Training and Development

Permanent Full Time 3

Senior Legal Typist Training and Development

Permanent Full Time 1


Transfer Permanent Full Time 1

Associate Management Auditor





No. of Appts.



Criminalist Transfer Permanent Full Time 1 Deputy Attorney General Transfer Permanent Full Time 1 Deputy Attorney General III Transfer Permanent Full Time 1 Deputy Attorney General IV Transfer Permanent Full Time 1 Executive Assistant Transfer Permanent Full Time 2 Field Representative, Department of Justice


Legal Analyst Transfer Permanent Full Time 1 Legal Secretary Transfer Permanent Full Time 1 Program Technician II Transfer Permanent Full Time 1 Program Technician III Transfer Permanent Full Time 2 Property Controller II Transfer Permanent Full Time 1 Research Data Specialist II Transfer Permanent Full Time 1 Senior Legal Typist Transfer Permanent Full Time 1 Special Agent Supervisor, Department of Justice


Special Agent Trainee, Department of Justice




Staff Services Analyst (General)


FINDING NO. 3 – Unlawful Appointments

Summary: The DOJ failed to ensure that all appointments are based on merit,

and comply with the laws and rules governing equitable administration of the civil service merit system.

The DOJ made one appointment utilizing the certification list for the Library Technical Assistant I. The hired candidate did not meet minimum qualifications for the classification at the time of the examination. The DOJ failed to complete the unlawful appointment investigation in a prompt and timely manner in accordance with its delegated responsibility to conduct a proper investigation pursuant to California Code of Regulations, title 2, section 243.2. Therefore, this appointment will be allowed to stand.


Also, the DOJ made one appointment utilizing the certification list for the Supervising Deputy Attorney General. The hired candidate did not meet minimum qualifications for the classification at the time of the examination10. Upon completion of the unlawful appointment investigation, this appointment was voided. Furthermore, the DOJ made one appointment utilizing the certification list for the Office Technician (General). The hired candidate did not meet minimum qualifications for the classification at the time of the examination; however, he met the minimum qualifications by the time of appointment. The SPB allowed the appointment to stand to minimize the impact on the employee.

Lastly, the DOJ made one appointment utilizing the certification list for the Program Technician II. The hired candidate did not meet minimum qualifications for the classification at the time of the examination; however, he met the minimum qualifications by the time of appointment. The SPB allowed the appointment to stand to minimize the impact on the employee

Criteria: Pursuant to Government Code section 18931, subdivision (a), the

Board shall establish minimum qualifications for determining the fitness and qualifications of employees for each class of position. In accordance with California Code of Regulations, title 2, section 249.4, appointing powers shall verify that the candidate satisfies the minimum qualifications of the classification before the candidate is appointed.

According to Human Resources Manual Section 3002, during the examination process and before appointment, information submitted in the application process from all candidates, except those who are on reemployment lists or who have reinstatement rights, must be evaluated for verification of meeting the minimum qualifications of the classification established by the Board. California Code of Regulations, title 2, section 171.2, and the Selection Manual section 6200.3 (f) provide that candidates for

10 The candidate is the same individual who was identified in Finding #1.


examinations must meet minimum qualifications by either the examination cutoff date or written test date.

Severity: Very Serious. An unlawful appointment provides the employee with

an unfair and unearned appointment advantage over other employees whose appointments have been processed in compliance with the requirements of civil service law. Unlawful appointments which are not corrected also create appointment inconsistencies that jeopardize the equitable administration of the civil service merit system.

When an unlawful appointment is voided, the employee loses any tenure in the position, as well as seniority credits, eligibility to take promotional examinations, and compensation at the voided appointment level. If “bad faith” is determined on the part of the appointing power, civil or criminal action may be initiated. Disciplinary action may also be pursued against any officer or employee in a position of authority who directs any officer or employee to take action in violation of the appointment laws. If bad faith is determined on the part of the employee, the employee may be required to reimburse all compensation resulting from the unlawful appointment and may also be subject to disciplinary action. In cases where the candidate accepted the job offer in good faith and more than one year has elapsed, the appointment will be allowed to stand

Cause: Library Technical Assistant I: The DOJ states that they were

confused regarding the unlawful appointment investigation process, but that they now understand their responsibility to initiate unlawful appointment investigations at the direction of a control agency.

Supervising Deputy Attorney General: The DOJ states that it was an

oversight to allow a candidate into the examination without meeting the minimum qualifications.

Office Technician (General) and Program Technician II: The DOJ

acknowledges that allowing the candidates into the examinations prior to meeting the minimum qualifications was an error on their part.


SPB a written corrective action response which addresses the


corrections the department will implement to demonstrate that the department will improve its hiring practices. Copies of relevant documentation demonstrating that the corrective action has been implemented must be included with the corrective action response.

FINDING NO. 4 – Inappropriate Appointment by Way of Transfer

Summary: The DOJ made one inappropriate appointment by way of transfer.

Specifically, the incumbent transferred from a Tax Technician I position to an Office Technician (Typing) position. The Tax Technician I classification is at the entry level/first journey level whereas the Office Technician (Typing) position is at the advanced journey level. These two classifications do not involve substantially the same level of duties or responsibilities and as a result, the criteria specified in California Code of Regulations, title 2, section 430, was not met.

Criteria: Government Code section 19050.4 provides, in part, that a transfer

may be accomplished without examination pursuant to rule. California Code of Regulations, title 2, section 430 provides that classes meeting the criteria established by this article shall be considered to involve substantially the same level of duties, responsibility and salary for the purposes of Government Code section 19050.4; provided that the Board or the Executive Officer may prohibit transfer between such classes based on a specific finding that they are in a promotional relationship.

Severity: Very Serious. The department failed to ensure that all appointments

are based on merit and comply with the laws and rules governing equitable administration of the civil service merit system.

Cause: The DOJ states that this transfer was allowed due to an

administrative oversight and agrees that the two classifications do not have substantially the same level of duties and responsibilities.


SPB a written corrective action response which addresses the corrections the department will implement to demonstrate that the


department will improve its hiring practices. Copies of relevant documentation demonstrating that the corrective action has been implemented must be included with the corrective action response.

FINDING NO. 5 – Position(s) Were Improperly Filled by Training and Development Assignments

Summary: The DOJ filled three Criminal Intelligence Specialist II positions with

inappropriate Training and Development (T&D) assignments. The advertisements for these vacancies were for a Criminal Intelligence Specialist III or Criminal Identification Specialist III. Inexplicably, the DOJ filled these positions by T&D at a lower level than advertised, the Criminal Intelligence Specialist II level. Upon inquiry, the DOJ indicated the errors in the T&D assignments were due to typographical errors; however, the CRU reviewed documentation provided by DOJ which contradicted this assertion.

Criteria: California Code of Regulations, title 2, section 248 provides that a person shall only be appointed to a civil service classification that is appropriate for the functions.

Severity: Very Serious. By filling the three Criminal Intelligence Specialist II

positions with T&D assignments lower in classification than advertised, applicants who were certified eligible in the lower classification were not provided the opportunity to compete for the position.

Cause: The DOJ states that three Program Technician IIIs were selected for

the Criminal Intelligence Specialist III positions; however, the candidates did not meet the minimum qualifications. Further, since the Criminal Intelligence Specialist III classification is more than three steps higher than the Program Technician III, the DOJ believed they could place the candidates on a T&D assignment at the lower Criminal Intelligence Specialist II level based on their interpretation of California Code of Regulations, title 2, section 438. The DOJ states that after further discussion with the SPB, they have revised their policy to only allow T&D assignments to classifications that have been advertised.


Corrective Action: Within 90 days of the date of this report, the DOJ must submit to the SPB a written corrective action response which addresses the corrections the department will implement to demonstrate that the department will improve its hiring practices and ensure conformity with California Code of Regulations, title 2, section 248. Copies of relevant documentation demonstrating that the corrective action has been implemented must be included with the corrective action response.

FINDING NO. 6 – Probationary Evaluations Were Not Provided for All

Appointments Reviewed and Those That Were Reviewed Were Untimely

Summary: The DOJ did not provide 14 probationary reports of performance for

12 of the 103 appointments reviewed by the CRU in this area. In addition, the DOJ did not provide eight probationary reports of performance in a timely manner, as reflected in the tables below. This is the second consecutive time this has been a finding for the DOJ.


Type Number of

Appointments

Total Number of Missing

Probation Reports

Accounting Administrator I (Supervisor)

Certification List 1 1

Administrative Assistant I Certification List 1 1







Information Technology Specialist III


Security Officer I, Department of Justice


Staff Services Manager I Certification List 1 1



Type Number of

Appointments

Total Number of Missing

Probation Reports




Transfer 1 1

Field Representative, Department of Justice

Transfer 1 1


Type Number of

Appointments

Total Number of Late Probation

Reports

Criminal Identification & Intelligence Supervisor




Office Technician (T) Certification List 1 1

Program Technician III Certification List 1 1

Senior Legal Analyst Certification List 1 1


Transfer 1 1

Executive Assistant Transfer 1 1

Criteria: The service of a probationary period is required when an employee

enters or is promoted in the state civil service by permanent appointment from an employment list; upon reinstatement after a break in continuity of service resulting from a permanent separation; or after any other type of appointment situation not specifically excepted from the probationary period. (Gov. Code, § 19171.) During the probationary period, the appointing power shall evaluate the work and efficiency of a probationer in the manner and at such periods as the department rules may require. (Gov. Code, § 19172.) A report of the probationer’s performance shall be made to the employee at sufficiently frequent intervals to keep the employee adequately informed of progress on the job. (Cal. Code Regs., tit. 2, § 599.795.)


A written appraisal of performance shall be made to the Department within 10 days after the end of each one-third portion of the probationary period. (Ibid.) The Board’s record retention rules require that appointing powers retain all probationary reports for five years from the date the record is created. (Cal. Code Regs., tit. 2, § 26, subd. (a)(3).)

Severity: Serious. The probationary period is the final step in the selection

process to ensure that the individual selected can successfully perform the full scope of their job duties. Failing to use the probationary period to assist an employee in improving his or her performance or terminating the appointment upon determination that the appointment is not a good job/person match is unfair to the employee and serves to erode the quality of state government.

Cause: The DOJ states that their practice requires supervisors to not only

provide probationary reports to employees on a timely basis, but also to ensure the original signed report is forwarded to the DOJ’s Office of Human Resources for placement into the employee’s official personnel file. The DOJ claims that this is a highly manual process and the cause for this finding is due to constraints on being able to follow up in a timely and more frequent basis with supervisors.


SPB a written corrective action response which addresses the corrections the department will implement to demonstrate conformity with the probationary requirements of Government Code section 19172 and California Code of Regulations, title 2, section 599.795. Copies of relevant documentation demonstrating that the corrective action has been implemented must be included with the corrective action response.

FINDING NO. 7 – Appointment Documentation Was Not Kept for the Appropriate

Amount of Time

Summary: The DOJ failed to retain personnel records. Of the 204 appointments

reviewed, the DOJ did not retain 5 NOPAs. This is the second consecutive time this has been a finding for the DOJ.


Criteria: As specified in section 26 of the Board’s Regulations, appointing powers are required to retain records related to affirmative action, equal employment opportunity, examinations, merit, selection, and appointments for a minimum period of five years from the date the record is created. These records are required to be readily accessible and retained in an orderly and systematic manner. (Cal. Code Regs., tit. 2, § 26.)

Severity: Technical. Without documentation, the CRU could not verify if the

appointments were properly conducted. Cause: The DOJ states that they have a tracking process to assist in

ensuring they receive NOPAs back from the employees; however, they claim it is a highly manual process, which leaves them susceptible to human error.


SPB a written corrective action response which addresses the corrections the department will implement to ensure conformity with the record retention requirements of California Code of Regulations, title 2, section 26. Copies of relevant documentation demonstrating that the corrective action has been implemented must be included with the corrective action response.

Equal Employment Opportunity Each state agency is responsible for an effective EEO program. (Gov. Code, § 19790.) The appointing power for each state agency has the major responsibility for monitoring the effectiveness of its EEO program. (Gov. Code, § 19794.) To that end, the appointing power must issue a policy statement committed to EEO; issue procedures for filing, processing, and resolving discrimination complaints; and cooperate with the CalHR, in accordance with Civil Code section 1798.24, subdivisions (o) and (p), by providing access to all required files, documents and data necessary to carry out these mandates. (Ibid.) In addition, the appointing power must appoint, at the managerial level, an EEO Officer, who shall report directly to, and be under the supervision of, the director of the department to develop, implement, coordinate, and monitor the department’s EEO program. (Gov. Code, § 19795, subd. (a).) Each state agency must establish a separate committee of employees who are individuals with a disability, or who have an interest in disability issues, to advise the head of the


agency on issues of concern to employees with disabilities. (Gov. Code, § 19795, subd. (b)(1).) The department must invite all employees to serve on the committee and take appropriate steps to ensure that the final committee is comprised of members who have disabilities or who have an interest in disability issues. (Gov. Code, § 19795, subd. (b)(2).)

After reviewing the policies, procedures, and programs necessary for compliance with the EEO program’s role and responsibilities according to statutory and regulatory guidelines, the CRU determined that the DOJ’s EEO program provided employees with information and guidance on the EEO process including instructions on how to file discrimination claims. Furthermore, the EEO program outlines the roles and responsibilities of the EEO Officer, as well as supervisors and managers. The EEO Officer, who is at a managerial level, reports directly to the Executive Director of the DOJ. The DOJ also provided evidence of its efforts to promote EEO in its hiring and employment practices and to increase its hiring of persons with a disability.

Personal Services Contracts A PSC includes any contract, requisition, or purchase order under which labor or personal services is a significant, separately identifiable element, and the business or person performing the services is an independent contractor that does not have status as an employee of the state. (Cal. Code Regs., tit. 2, § 547.59.) The California Constitution has an implied civil service mandate limiting the state’s authority to contract with private entities to perform services the state has historically or customarily performed. Government Code section 19130, subdivision (a), however, codifies exceptions to the civil service mandate where PSC’s achieve cost savings for the state. PSC’s that are of a type enumerated in subdivision (b) of Government Code section 19130 are also permissible. Subdivision (b) contracts include, but are not limited to, private contracts for a new state function, services that are not available within state service, services that are incidental to a contract for the purchase or lease of real or personal property, and services that are of an urgent, temporary, or occasional nature. For cost-savings PSC’s, a state agency is required to notify SPB of its intent to execute such a contract. (Gov. Code, § 19131.) For subdivision (b) contracts, the SPB reviews the adequacy of the proposed or executed contract at the request of an employee organization representing state employees. (Gov. Code, § 19132.)

FINDING NO. 8 – Equal Employment Opportunity Program Complied with All Civil Service Laws and Board Rules


During the period under review, February 1, 2019, through July 30, 2019, the DOJ had 356 PSC’s that were in effect. The CRU reviewed 40 of those, which are listed below:

Vendor Services Contract Date(s)

Contract Amount

Justification Identified?

Union Notification

A & P Helicopter

Aircraft 7/1/19-6/30/21

$675,000.00 Yes Yes

Cloverleaf Solutions, Inc.

IT Services 6/29/17-12/31/19

$1,124,563.20 Yes No


IT Services 9/15/17-12/31/19

$1,153,312.00 Yes No


IT Services 3/1/18-2/28/20

$1,453,120.00 Yes No


IT Services 3/1/18-2/28/20

$789,888.00 Yes No


IT Services 3/4/18-6/30/20

$1,165,946.60 Yes No


IT Services 3/20/18-12/31/19

$1,337,160.00 Yes No

Conduit Language Specialist, Inc.

Electronic Surveillance & Transcription

4/1/17-3/31/20

$494,543.00 Yes No

Confidential Expert Witness11

Expert Witness

6/30/19-6/30/20

$200,000.00 Yes N/A


Legal Services 3/1/13-5/20/20

$8,000,000.00 Yes N/A


Wind and Soil Erosion

12/9/14-6/30/22

$125,000.00 Yes N/A

11 Pursuant to the State Contracting Manual, Volume 1, Chapter 3, Section 7 B., union notification is not required for expert witnesses or consultations in connection with a confidential investigation or any confidential component of a pending or active legal action.



Contract Amount


Union Notification


Foreign Exchange

Transaction Cost

9/30/15-6/30/20

$111,000.00 Yes N/A


Data Analysis &

Econometrics

10/27/16-6/30/20

$465,000.00 Yes N/A


Acoustical Engineering

4/20/17-6/30/20

$128,500.00 Yes N/A


Environmental Engineering / Environmental

Forensics

9/25/17-6/30/20

$139,108.00 Yes N/A


Forensic Accounting

12/6/17-6/30/20

$199,500.00 Yes N/A


Public Policy, Criminal Justice,

Corrections and

Rehabilitation

5/7/18-9/30/20

$160,000.00 Yes N/A


Corporate Finance & Financial

Intermediation & Regulation

12/17/18-5/20/20

$300,000.00 Yes N/A


Fixed Income & Derivatives Modeling and

Analysis

1/7/19-5/20/20

$250,000.00 Yes N/A


Legal Services 1/25/19-12/31/21

$1,000,000.00 Yes N/A


Securities Analysis &

Ratings Review

12/6/18-5/30/20

$180,000.00 Yes N/A


Applied Economics

5/30/19-6/30/21

$125,000.00 Yes N/A



Contract Amount


Union Notification


Jury Consulting

4/18/19-6/30/20

$350,000.00 Yes N/A

Dajani Consulting, Inc.

IT Services 11/1/18-12/31/19

$1,065,563.00 Yes No

Dajani Consulting, Inc.

IT Services 6/14/19-12/31/20

$1,049,708.00 Yes No

First Data Merchant Services LLC

Credit Card Services

1/1/11-5/31/21

$1,882,500.00 Yes No

First Data Merchant Services LLC

Electronic Payment Services

6/1/15-5/31/21

$6,719,856.55 Yes No

Franklin Covey Client Sales, Inc.

Leadership Training &

License to All Access Pass

Portal

7/1/19-5/31/21

$454,598.50 Yes No

Hamilton Company

Lab Equipment

Maintenance

6/25/19-6/8/20

$81,163.00 Yes No

Heli-Flite, Inc.

Helicopter Services

7/1/19-6/30/21

$675,000.00 Yes No

InterCon Security Systems

Unarmed Security Guard

Services

2/1/19-6/30/19

$149,000.00 Yes Yes

Iris Data Services, Inc.

Mortgage Fraud

7/1/19-6/30/20

$2,000,000.00 Yes Yes

Iron Mountain Films, Inc.

Multimedia Services

7/1/17-6/30/19

$249,000.00 Yes No

Litigation-Tech LLC

In-Court Trial Technician

5/20/19-12/31/19

$149,500.00 Yes Yes

Mather Aviation, LLC

Aircraft Maintenance

& Repair Services

9/17/17-6/30/20

$800,000.00 Yes No



Contract Amount


Union Notification

National Security Industries

Unarmed Security Guard

Services

7/1/19-3/1/22

$1,152,000.00 Yes No

North State Environmental

Hazardous Waste

Removal

5/1/19-4/30/21

$144,000.00 Yes No

PARC Specialty Contractors

Hazardous Waste

Removal

1/1/19-12/31/20

$96,000.00 Yes Yes

QualApps, Inc.

IT Services 6/13/19-4/12/21

$1,298,950.00 Yes No

Rithum Automation LLC

Lab Equipment

Maintenance

3/1/19-1/31/21

$360,000.00 Yes No

FINDING NO. 9 – Unions Were Not Notified of Personal Services Contracts

Summary: The DOJ did not notify unions prior to entering into 20 of the 40

PSC’s. Criteria: The contract shall not be executed until the state agency proposing

to execute the contract has notified all organizations that represent state employees who perform the type of work to be contracted. (Gov. Code, § 19132, subd. (b)(1).)

Severity: Serious. Unions must be notified of impending personal services

contracts in order to ensure they are aware contracts are being proposed for work that their members could perform.

Cause: The DOJ states that the union notifications were being filtered and

sent by a manager to the unions for consistency. The DOJ further states that since the union notifications were not saved to a shared file, they were not able to provide all the requested union notifications to the SPB.

Corrective Action: It is the contracting department’s responsibility to identify and notify

any unions whose members could potentially perform the work to be contracted prior to executing the PSC. Within 90 days of the date of


this report, the DOJ must submit to the SPB a written corrective action response which addresses the corrections the department will implement to ensure conformity with the requirements of Government Code section 19132. Copies of relevant documentation demonstrating that the corrective action has been implemented must be included with the corrective action response.

Mandated Training Each member, officer, or designated employee of a state agency who is required to file a statement of economic interest (referred to as “filers”) because of the position he or she holds with the agency is required to take an orientation course on the relevant ethics statutes and regulations that govern the official conduct of state officials. (Gov. Code, §§ 11146 & 11146.1.) State agencies are required to offer filers the orientation course on a semi-annual basis. (Gov. Code, § 11146.1.) New filers must be trained within six months of appointment and at least once during each consecutive period of two calendar years, commencing on the first odd-numbered year thereafter. (Gov. Code, § 11146.3.) Additionally, new supervisors must be provided sexual harassment prevention training within six months of appointment. Thereafter, each department must provide its supervisors two hours of sexual harassment prevention training every two years. (Gov. Code, § 12950.1, subds. (a) and (b); Gov. Code § 19995.4.) The Board may conduct reviews of any appointing power’s personnel practices to ensure compliance with civil service laws and Board regulations. (Gov. Code, § 18661, subd. (a).) In particular, the Board may audit personnel practices related to such matters as selection and examination procedures, appointments, promotions, the management of probationary periods, and any other area related to the operation of the merit principle in state civil service. (Ibid.) Accordingly, the CRU reviews documents and records related to training that appointing powers are required by the afore-cited laws to provide its employees. The CRU reviewed the DOJ’s mandated training program that was in effect during the compliance review period, August 1, 2017, through July 31, 2019. FINDING NO. 10 – Ethics Training Was Not Provided for All Filers

Summary: The DOJ did not provide ethics training to 16 of 1098 existing filers.

In addition, the DOJ did not provide ethics training to 52 of 145 new


filers within six months of their appointment. This is the second consecutive time this has been a finding for the DOJ.

Criteria: New filers must be provided ethics training within six months of appointment. Existing filers must be trained at least once during each consecutive period of two calendar years commencing on the first odd-numbered year thereafter. (Gov. Code, § 11146.3, subd. (b).)

Severity: Very Serious. The department does not ensure that its filers are

aware of prohibitions related to their official position and influence. Cause: The DOJ states that despite the filers being provided a notice with

information and instructions for the ethics training, the cause for this finding is either failure on the part of the employee to take the course or forward a completed training certificate to the ethics training Filing Officer.

Corrective Action: Within 90 days of this report, the DOJ must submit to the SPB a

written corrective action response which addresses the corrections the department will implement to demonstrate conformity with Government Code section 11146.3. Copies of relevant documentation demonstrating that the corrective action has been implemented must be included with the corrective action response.

FINDING NO. 11 – Sexual Harassment Prevention Training Was Not Provided for

All Supervisors Summary: The DOJ did not provide sexual harassment prevention training to

21 of 117 new supervisors within 6 months of their appointment. In addition, the DOJ did not provide sexual harassment prevention training to 306 of 498 existing supervisors every 2 years. This is the second consecutive time this has been a finding for the DOJ.

Criteria: Each department must provide its supervisors two hours of sexual harassment prevention training every two years. New supervisors must be provided sexual harassment prevention training within six months of appointment. (Gov. Code, § 12950.1, subd. (a).)

Severity: Very Serious. The department does not ensure that all new and

existing supervisors are properly trained to respond to sexual


harassment or unwelcome sexual advances, requests for sexual favors, and other verbal or physical harassment of a sexual nature. This limits the department’s ability to retain a quality workforce, impacts employee morale and productivity, and subjects the department to litigation.

Cause: The DOJ states that despite notifying all supervisors that they are

required to take the training, workload and scheduling constraints sometimes did not allow supervisors to attend the training within the specified timeframes.


SPB a written corrective action response which addresses the corrections the department will implement to ensure that supervisors are provided sexual harassment prevention training in accordance with Government Code section 12950.1. Copies of relevant documentation demonstrating that the corrective action has been implemented must be included with the corrective action response.

Compensation and Pay Salary Determination The pay plan for state civil service consists of salary ranges and steps established by CalHR. (Cal. Code Regs., tit. 2, § 599.666.) Several salary rules dictate how departments calculate and determine an employee’s salary rate12 upon appointment depending on the appointment type, the employee’s state employment and pay history, and tenure. Typically, agencies appoint employees to the minimum rate of the salary range for the class. Special provisions for appointments above the minimum exist to meet special recruitment needs and to accommodate employees who transfer into a class from another civil service class and are already receiving salaries above the minimum. During the period under review, February 1, 2019, through July 30, 2019, the DOJ made 605 appointments. The CRU reviewed 53 of those appointments to determine if the DOJ applied salary regulations accurately and correctly processed employees’ compensation, which are listed below:

12 “Rate” is any one of the salary rates in the resolution by CalHR which establishes the salary ranges and steps of the Pay Plan (Cal. Code Regs., tit. 2, section 599.666).




Salary (Monthly

Rate) Accounting Administrator I (Supervisor)

Certification List Permanent Full Time $7,022

Accounting Administrator III


Accounting Officer (Specialist)


Administrative Assistant I


Assistant Bureau Chief, Division of Law Enforcement, Department of Justice




Business Service Officer II (Supervisor)


Criminal Identification Specialist III


Criminalist Manager Certification List Permanent Full Time $9,570 Criminal Identification & Intelligence Supervisor






Deputy Attorney General V






Digital Print Operator I Certification List Permanent Full Time $2,947 Field Representative, Department of Justice





Salary (Monthly

Rate) Information Officer I (Specialist)






Information Technology Supervisor I


Information Technology Manager II


Investigative Auditor II, Department of Justice


Legal Secretary Certification List Permanent Full Time $3,435 Personnel Technician I Certification List Permanent Full Time $3,518 Program Technician Certification List Permanent Full Time $2,722 Program Technician III Certification List Permanent Full Time $4,003

Property Controller II Certification List Limited Term

Full Time $3,992

Property Controller II Certification List Permanent Full Time $3,728 Security Officer I, Department of Justice


Security Officer I, Department of Justice


Senior Legal Analyst Certification List Permanent Full Time $5,711 Special Agent Supervisor, Department of Justice




Staff Management Auditor


Staff Services Manager I


Staff Services Manager I


Staff Services Manager II (Supervisory)


Staff Services Manager III





Salary (Monthly

Rate) Supervising Deputy Attorney General




Supervising Program Technician II





Demotion Permanent Full Time $5,189

Deputy Attorney V Reinstatement Permanent Full Time $13,716 Criminal Identification Specialist II

Transfer Permanent Full Time $4,008

Deputy Attorney General III


Executive Assistant Transfer Permanent Full Time $3,719 Field Representative, Department of Justice


Property Controller II Transfer Permanent Full Time $4,828 Research Data Specialist II


Senior Legal Typist Transfer Permanent Full Time $4,093 Special Agent, Department of Justice


FINDING NO. 12 – Incorrect Application of Salary Determination Laws, Rules, and CalHR Policies and Guidelines for Appointment

Summary: The CRU found the following errors in the DOJ’s determination of

employee compensation:

Classification Description of Finding(s) Criteria

1. Business Services Officer II (Supervisory)

Employee should have received a 5 percent increase when appointed to their new classification resulting in the employee being undercompensated.

Cal. Code Regs., tit. 2, § 599.674, subd.

(b)

2. Criminal Identification Specialist I

Employee was inappropriately appointed to the maximum salary rate of the classification resulting in the employee being overcompensated.


(a)


Classification Description of Finding(s) Criteria 3. Criminal

Intelligence Specialist III

Incorrect anniversary date keyed resulting in the employee being overcompensated.

Cal. Code Regs., tit. 2, § 599.608

4. Deputy Attorney General V



(a)




(a)




(a)

Criteria: Departments are required to calculate and apply salary rules for each

appointed employee accurately based on the pay plan for the state civil service. All civil service classes have salary ranges with minimum and maximum rates. (Cal. Code Regs., tit. 2, § 599.666.)

Severity: Very Serious. In six circumstances, the DOJ failed to comply with

the requirements outlined in the state civil service pay plan. Incorrectly applying compensation laws and rules in accordance with CalHR’s policies and guidelines results in civil service employees receiving incorrect and/or inappropriate pay amounts.

Cause: Business Services Officer II (Supervisory): The DOJ states they

applied a one-step (5%) increase to the incorrect “current salary” of the employee, which was a result of human error.

Criminal Identification Specialist I: The DOJ states that this salary

determination was based on Personnel Management Liaisons (PML) Memorandum 2007-02613. The DOJ further states that in 2008, the DOJ consulted with the Department of Personnel Administration (now CalHR) regarding the intent of PML 2007-026, which they claim they received guidance that departments were given authority to approve movement to the maximum of the salary range when the

13 PML 2007-026, Delegation of Personnel Management Functions Update, issued on September 25, 2007. The pertinent section cited by DOJ is Merit Salary Adjustments.


salary is $25.00 or less from the maximum rate. The DOJ states that after being provided this direction, they have continued to exercise the authority in that manner.

Criminal Identification Specialist III: The DOJ acknowledges the

incorrect anniversary date was keyed and was a result of human error.

Deputy Attorney General Vs: The DOJ states that these three salary

determinations were based on PML 2007-026. The DOJ further states that in 2008, the DOJ consulted with the Department of Personnel Administration (now CalHR) regarding the intent of PML 2007-026, which they claim they received guidance that departments were given authority to approve movement to the maximum of the salary range when the salary is $25.00 or less from the maximum rate. The DOJ states that after being provided this direction, they have continued to exercise the authority in that manner.

SPB Response: There is nothing in law or policy that would allow the DOJ to approve

movement to the maximum salary rate when the salary is $25 or less from the maximum salary. DOJ cites a telephone conversation with Department of Personnel Administration staff from 2008 to justify their salary determination. However, in September 2020, CalHR verified that departments have not been provided the delegated authority to set salaries at the maximum rate when the salary is $25 or less from the maximum salary.


SPB a written corrective action response which addresses the corrections the department will implement to ensure that employees are compensated correctly. The DOJ must establish an audit system to correct current compensation transactions as well as future transactions. Copies of relevant documentation demonstrating that the corrective action has been implemented must be included with the corrective action response.


Exceptions to Salary California Code of Regulations sections 599.674 and 599.676 allow employees moving to to a new classification from a promotional employment list to receive a salary rate up to one step (5%) above the salary rate they last received. In those instances when these rules do not provide employees with the equivalent rate last received (1) upon transfer to a deep class or (2) in their former class, then under the authority of Government Code section 19836, an exception to these salary rules can be made. Exceptions to these rules should be applied uniformly for all employees. (Classification and Pay Guide Section 285.) For those affected employees incurring salary loss upon transfer to a deep class, CalHR recommends placing the employee on a T&D Assignment for a period of time sufficient to meet the higher alternate range criteria. Upon successful completion of the T&D assignment, the employee may be transferred to the transferable range, and then moved to the next higher alternate range effective the same day. If this does not provide the employee their current salary, departments may process an exception so the employee does not incur a salary loss. (Ibid.) Delegation agreements with CalHR give departments the delegated authority to approve an exception to the salary rules under the following circumstances: when there is a salary loss upon transfer to a deep class; when there is a reappointment or reinstatement without a break in service. During the period under review, February 1, 2019, through July 30, 2019, the DOJ authorized 1 salary exception request. The CRU reviewed the authorized salary exception request, listed below, to determine if the DOJ correctly verified, approved and documented the salary exception authorization process:

Classification Prior Classification T&D

Assignment? (Y/N)

Approved Salary

Staff Services Analyst Executive Assistant No $4,793


FINDING NO. 13 – Exceptions to Salary Rules Complied with Civil Service Laws, Board Rules, and CalHR Policies and Guidelines

The CRU found that the exception to salary determination the DOJ made during the compliance review period, satisfied civil service laws, Board rules and CalHR policies and guidelines. Alternate Range Movement Salary Determination (within same classification) If an employee qualifies under established criteria and moves from one alternate range to another alternate range of a class, the employee shall receive an increase or a decrease equivalent to the total of the range differential between the maximum salary rates of the alternate ranges. (Cal. Code Regs., tit. 2, § 599.681.) However, in many instances, the CalHR provides salary rules departments must use when employees move between alternate ranges. These rules are described in the alternate range criteria. (CalHR Pay Scales). When no salary rule or method is cited in the alternate range criteria, departments must default to Rule 599.681. During the period under review, February 1, 2019, through July 30, 2019, the DOJ employees made 50 alternate range movements within a classification. The CRU reviewed 35 of those alternate range movements to determine if the DOJ applied salary regulations accurately and correctly processed each employee’s compensation, which are listed below:

Classification Prior

Range Current Range

Time Base Salary

(Monthly Rate)

Criminalist Range B Range C Full Time $5,544 Deputy Attorney General Range B Range C Full Time $6,760 Deputy Attorney General Range C Range D Full Time $8,205 Deputy Attorney General Range C Range D Full Time $8,217 Deputy Attorney General Range C Range D Full Time $7,826 Deputy Attorney General Range C Range D Full Time $7,609 Deputy Attorney General Range A Range B Full Time $6,118 Deputy Attorney General Range C Range D Full Time $7,826 Information Technology Specialist I

Range B Range C Full Time $6,676






Classification Prior

Range Current Range

Time Base Salary

(Monthly Rate)


Range B Range C Full Time $6677

Legal Secretary Range A Range B Full Time $3,787 Legal Secretary Range A Range B Full Time $4,515 Legal Secretary Range A Range B Full Time $4,515 Legal Secretary Range A Range B Full Time $4,515 Personnel Specialist Range A Range B Full Time $3,468 Personnel Specialist Range B Range C Full Time $3,768 Personnel Specialist Range A Range B Full Time $3,468 Personnel Specialist Range C Range D Full Time $4,157 Personnel Specialist Range B Range C Full Time $3,768 Senior Legal Typist Range A Range B Full Time $3,850 Senior Legal Typist Range A Range B Full Time $3,850 Senior Legal Typist Range A Range B Full Time $3,850 Senior Legal Typist Range A Range B Full Time $3,850 Special Agent, Department of Justice


Staff Services Analyst Range A Range C Full Time $4,136 Staff Services Analyst Range B Range C Full Time $4,136 Staff Services Analyst Range A Range C Full Time $4,136 Staff Services Analyst Range B Range C Full Time $4,534 Staff Services Analyst Range A Range C Full Time $4,136 Staff Services Analyst Range A Range C Full Time $4,136 Staff Services Analyst Range A Range C Full Time $4,136 Staff Services Analyst Range A Range B Full Time $4,192 Staff Services Analyst Range B Range C Full Time $4,136

FINDING NO. 14 – Alternate Range Movements Did Not Comply with Civil Service


Summary: The CRU found the following errors in the DOJ’s determination of

employee compensation:


1. Legal Secretary HAM plus salary was combined with the base salary.

CalHR Pay Scales, Section 5: Hire-Above-Minimum Authorization, General Instructions (A) and (I).



CalHR Pay Scales, section 5: Hire-Above-Minimum Authorization, General Instructions (A) and (I).



4. Senior Legal Typist

HAM plus salary was combined with the base salary.











8. Staff Services Analyst

Employee should have been placed into Range B of the Staff Services Analyst classification at an earlier date as they met the Range B criteria; employee was undercompensated.

Alternate Range Criteria #069

For items 1-7, when DOJ appointed employees eligible for a HAM, it incorrectly keyed the rate of pay by combining the base salary and the “plus” amount. The amounts should have been keyed separately. Thus, CRU was unable to make a determination that DOJ appropriately calculated the Alternate Range salary when these employees were subsequently eligible for an Alternate Range change. DOJ’s actions do not comport with the CalHR Pay Scales sections cited above.

Criteria: Alternate ranges are designed to recognize increased competence

in the performance of class duties based upon experience obtained while in the class. The employee gains status in the alternate range


as though each range were a separate classification. (Classification and Pay Guide Section 220.)

Departments are required to calculate and apply salary rules for each

appointed employee accurately based on the pay plan for the state civil service. All civil service classes have salary ranges with minimum and maximum rates. (Cal. Code Regs., tit. 2, § 599.666.)

Severity: Very Serious. In eight circumstances, the DOJ failed to comply with

the requirements outlined in the state civil service pay plan. Incorrectly applying compensation laws and rules not in accordance with CalHR’s policies and guidelines results in civil service employees receiving incorrect and/or inappropriate pay amounts.

Cause: The DOJ states that for the three Legal Secretary and four Senior

Legal Typist findings, it is their departmental practice of combining the base and plus salary.

As to the Staff Services Analyst finding, the DOJ states the transaction was a keying error.


SPB a written corrective action response which addresses the corrections the department will implement to ensure that employees are compensated correctly. The DOJ must establish an audit system to correct current compensation transactions as well as future transactions. Additionally, the DOJ must verify that the underpaid Staff Services Analyst employee has been appropriately compensated. Copies of relevant documentation demonstrating that the corrective action has been implemented must be included with the corrective action response.

Hiring Above Minimum Requests The CalHR may authorize payment at any step above-the minimum limit to classes or positions to meet recruiting problems, or to obtain a person who has extraordinary qualifications. (Gov. Code § 19836.) For all employees new to state service, departments are delegated to approve HAMs for extraordinary qualifications. (Human Resources Manual Section 1707.) Appointing authorities may request HAMs for current state


employees with extraordinary qualifications. (Ibid.) Delegated HAM authority does not apply to current state employees. (Ibid.) This expertise should be well beyond the minimum qualifications of the class. (Ibid.) Unique talent, ability or skill as demonstrated by previous job experience may also constitute extraordinary qualifications. (Ibid.) The scope and depth of such experience should be more significant than its length. (Ibid.) The degree to which a candidate exceeds minimum qualifications should be a guiding factor, rather than a determining one. (Ibid.) The qualifications and hiring rates of state employees already in the same class should be carefully considered, since questions of salary equity may arise if new higher entry rates differ from previous ones. (Ibid.) Recruitment difficulty is a factor to the extent that a specific extraordinary skill should be difficult to recruit, even though some applicants are qualified in the general skills of the class. (Ibid.) If the provisions of this section are in conflict with the provisions of a memorandum of understanding reached pursuant to Government Code section 3517.5, the memorandum of understanding shall be controlling without further legislative action.14 (Gov. Code § 19836 subd. (b).) Appointing authorities may request and approve HAMs for former legislative employees who are appointed to a civil service class and received eligibility for appointment pursuant to Government Code section 18990. (Human Resources Manual Section 1707.) The salary received upon appointment to civil service shall be in accordance with the salary rules specified in the California Code of Regulations. (Ibid.) A salary determination is completed comparing the maximum salary rate of the former legislative class and the maximum salary rate of the civil service class to determine applicable salary and anniversary regulation. (Ibid.) Typically, the legislative employees are compensated at a higher rate of pay; therefore, they will be allowed to retain the rate they last received, not to exceed the maximum of the civil service class. (Ibid.) Appointing authorities may request/approve HAMs for former exempt employees appointed to a civil service class. (Human Resources Manual Section 1707.) The salary received upon appointment to civil service shall be competitive with the employee’s salary in the exempt appointment. (Ibid.) For example, An employee appointed to a civil service class which is preceded by an exempt appointment may be appointed at a salary rate comparable to the exempt appointment up to the maximum of the salary range for the civil service class. (Ibid.)

14 Except that if the provisions of the memorandum of understanding requires the expenditure of funds, the provisions shall not become effective unless approved by the Legislature in the annual Budget Act.


During the period under review, February 1, 2019, through July 30, 2019, the DOJ authorized 60 HAM requests. The CRU reviewed 24 of those authorized HAM requests to determine if the DOJ correctly applied Government Code section 19836 and appropriately verified, approved and documented candidates’ extraordinary qualifications, which are listed below:


Type Status

Salary Range

Salary (Monthly

Rate) Associate Governmental Program Analyst

Certification List Permanent $5,149 - $6,446

$5,676

Criminalist Certification List Permanent $3,517 - $7,405

$4,455

Criminalist Supervisor Certification List Permanent $6,972 - $9,114

$8,880

Deputy Attorney General Certification List Permanent $5,602 - $9,760

$7,609


$8,388


$7,089


$7,098


$7,989



$11,815



$9,671



$11,815



$11,196



$11,196



$10,155



$11,196



$10,155



$11,815



Type Status

Salary Range

Salary (Monthly

Rate) Information Technology Specialist II


$9,399



$5,758

Legal Support Supervisor I


$5,295

Office Assistant (Typing) Certification List Permanent $2,424 - $3,292

$3,292

Senior Legal Analyst Certification List Permanent $5,223 - $6,542

$6,215

Staff Services Manager I Certification List Permanent $6,124 - $7,608

$7,173

Staff Services Manager I Certification List Permanent $5,917 - $7,351

$6,500

FINDING NO. 15 – Incorrect Authorization of Hire Above the Minimum Requests

Summary: The CRU found one error in the DOJ’s processing of HAM requests:


Legal Support Supervisor I

Employee received a HAM rate they were not entitled to either through extraordinary qualifications or CalHR Pay Scales. This resulted in the employee being overcompensated.

CalHR Pay Scales Section 5

Human Resources

Manual Section 1707 Criteria: CalHR may authorize payment at any step above the minimum

salary limit to classes or positions in order to meet recruiting problems, to obtain a person who has extraordinary qualifications. (Gov. Code, § 19836.)

Severity: Failure to comply with state civil service pay plan by incorrectly

applying compensation laws and rules in accordance with CalHR’s policies and guidelines results in civil service employees receiving incorrect and/or inappropriate pay.

Cause: The DOJ states the Legal Support Supervisor series is identified and

referenced in Pay Differential 141 as an eligible classification and


has historically received the CalHR Pay Scales Section 5 HAM rate. The DOJ further states that they consistently apply the Section 5 HAM rate to the Legal Support Supervisor series based on its original intent; they believe this section was updated and the Legal Support Supervisor I classification was inadvertently omitted.

SPB Response: Pay differential 141 states, "Upon appointment to a position in one of

the above classes and designated locations, employees may be entitled to a "plus" adjustment to the maximum salary step. (See Section 5)". (Emphasis added) However, the Legal Support Supervisor I classification is not listed in Pay Scale Section 5 - Hiring-Above-Minimum Authorization; therefore, the employee was not entitled to the HAM. The DOJ did not provide any other documentation to substantiate the HAM based on extraordinary qualifications.

Employee should have received minimum salary of $4,227 upon appointment. Instead employee received maximum salary rate of $5,295.


SPB a written corrective action response which addresses the corrections the department will implement to ensure conformity with Gov. Code, § 19836 and CalHR Pay Scales Section 5. Copies of relevant documentation demonstrating that the corrective action has been implemented must be included with the corrective action response.

Red Circle Rates A red circle rate is a rate of pay authorized for an individual above the maximum salary for his or her class. (Gov. Code, § 19837.) Departments may authorize a red circle rate in the following circumstances: management initiated change15, lessening of abilities16,

15 Any major change in the type of classes, organizational structure, and/or staffing levels in a program. 16 Refers to an employee who, after many years of satisfactory service, no longer possesses the ability to perform the duties and responsibilities of his/her position.


downward reclassification,17 split-off,18 allocation standard changes,19 or changes in salary setting methods.20 (Ibid.) If a salary reduction is the result of split-off, changes in allocation standards, changes in salary setting methods, or a downward reclassification initiated by SPB or CalHR staff determination, the affected employee may receive a red circle rate regardless of the employee’s state service total. The employee may retain it until the maximum salary of his or her class equals or exceeds the red circle rate. (Classification and Pay Guide Section 260.) If an employee is moved to a position in a lower class because of management-initiated changes, he or she may receive a red circle rate provided he or she has a minimum of ten years’ state service21 and has performed the duties of the higher class satisfactorily22. The length of the red circle rate resulting from a management-initiated change is based on the affected employee’s length of state service. The red circle rate ends when the maximum salary of the class equals or exceeds the red circle rate or at the expiration of eligibility. (Ibid.) An employee whose position is blanketed into the state civil service from another public jurisdiction may receive a red circle rate regardless of the length of service in the other jurisdiction. (Cal. Code Regs., tit. 2, § 275.) The employee may retain the red circle rate until the maximum salary of the class to which the employee’s position is allocated equals or exceeds the red circle rate. Additionally, a red circle rate may be authorized for a former CEA appointee who is reinstating to a civil service classification, a CEA with no prior civil service in a promotional exam and is being appointed from a list without a break in service, or a CEA appointee who is being reduced to a lower CEA salary rate (Classification and Pay Guide Section

17 Downward reclassification is when, as a result of SPB action or a CalHR (or its predecessor, the Department of Personnel Administration) staff determination, an incumbent’s position is moved to a lower class without the duties being changed. 18 Split off is when one class is split into two or more classes, one of which is at a lower salary level than the original class. 19 Allocation standards for two or more classes may change to the degree that a position originally allocated to one class may be reallocated to a class with a lower salary without a change in duties. 20 Revised valuation standards applied in setting the salary for a class may result in reducing the salary of a class. 21 As calculated by the State Service and Seniority Unit at CalHR. An employee with nine years’ state service qualifies if the employee had been laid off or had been on a leave of absence for one or more years to reduce the effect of a layoff (CCR § 599.608). 22 The latter requirement is normally satisfied by the successful completion of a probationary period, unless there is compelling evidence to suggest otherwise.


440). An employee who has ten years of service, one year of which is under a career executive assignment, shall receive a red circle rate unless the termination was voluntary or based on unsatisfactory performance. (Cal. Code of Regs., tit. 2, § 599.993.) If the termination was voluntary and performance was satisfactory, a red circle rate is permissive. (Ibid.) This rate is based on the CEA salary rate received at the time of the termination. Government Code section 13332.05 limits the funding of the red circle rate to no more than 90 calendar days following termination of a CEA appointment. As of April 1, 2005, departments have delegated authority to approve red circle rates for general civil service employees and CEA positions for up to 90 days. Current Bargaining Unit agreements also provide guidelines and rules on red circle rates that may supersede applicable laws, codes, rules and/or CalHR policies and guidelines. During the period under review, February 1, 2019, through July 30, 2019, the DOJ authorized one red circle request. The CRU reviewed the red circle request, listed below, to determine if the DOJ correctly verified, approved and documented the red circle authorization process:

Classification Prior Classification Red Circle Rate Reason for Red

Circle Rate Deputy Attorney General V

CEA B $15,121 Termination of

CEA

FINDING NO. 16 – Red Circle Rate Authorizations Complied with Civil Service Laws, Board Rules, and CalHR Policies and Guidelines

The CRU found that the red circle rate request the DOJ authorized during the compliance review period, satisfied civil service laws, Board rules and CalHR policies and guidelines. Arduous Pay Effective July 1, 1994, appointing authorities were provided the discretion to provide additional compensation for employees exempt from the Fair Labor Standards Act (FLSA) who perform arduous work that exceeds the normal demands of state service employment. (Human Resources Manual Section 1702.) The work must be extraordinarily demanding, time consuming, and significantly exceed employees’ normal workweek. The employee cannot be entitled to receive any other sort of compensation such as overtime. Eligible employees are FLSA-exempt employees who do not receive compensation in recognition of hours worked in excess of 40 hours per week. The duration of the arduous period must be at least two weeks or more. (Ibid.)


Excluded and represented employees who are FLSA-exempt and assigned to Work Week Group E are eligible to receive up to four (4) months of pay per fiscal year, or per event for emergencies, if the following conditions are met:23

There is a nonnegotiable deadline or extreme urgency; Work exceeds normal work hours and normal productivity; Work is unavoidable; Work involves extremely heavy workload; Employee is eligible for no other compensation, and The circumstances that support this pay differential are documented.

Departments have delegated authority to approve arduous pay for excluded employees who are FLSA-exempt, but CalHR approval is required for any arduous pay issued to represented employees. Although departments have delegated authority to approve arduous pay,24 they are required to fill out CalHR Form 777, documenting the circumstances, assessment and rationale behind all arduous pay approvals. A new Form 777 should be filled out for every employee receiving the pay differential, every time an employee is approved to receive a new pay differential, and every time an employee wants to extend their arduous pay. Extensions are only granted in rare circumstances. Departments must keep the Form 777 on file and retain the form for five years after the approval date. (Ibid.) During the period under review, February 1, 2019, through July 30, 2019, the DOJ issued Arduous Pay to two employees. The CRU reviewed the two arduous pay authorizations, listed below, to ensure compliance with applicable CalHR policies and guidelines:

23 Applicable Memorandum of Understandings or Bargaining Unit Agreements detail other specific criteria. 24 Pay Letter 94-32 established Pay Differential 62 regarding arduous pay for Bargaining Units 1, 7, 9, 17, 19, and 21, and Excluded employees.

Classification Bargaining

Unit

Work Week Group

Time Base

Total Compensation

Number of Months

Received Staff Services Manager II (Supervisory)

S01 E Full Time $2,400 2

Staff Services Manager II (Supervisory)

S01 E Full Time $3,600 3


FINDING NO. 17 – Arduous Pay Authorization Complied with Civil Service Laws, Board Rules, and/or CalHR Policies and Guidelines

The CRU found that the arduous pay authorizations that the DOJ made during the compliance review period, satisfied civil service laws, Board rules and CalHR policies and guidelines. Bilingual Pay A certified bilingual position is a position where the incumbent uses bilingual skills on a continuous basis and averages 10 percent or more of the total time worked. According to the Pay Differential 14, the 10 percent time standard is calculated based on the time spent conversing, interpreting, or transcribing in a second language and time spent on closely related activities performed directly in conjunction with the specific bilingual transactions. Typically, the department must review the position duty statement to confirm the percentage of time performing bilingual skills and verify the monthly pay differential is granted to a certified bilingual employee in a designated bilingual position. The position, not the employee, receives the bilingual designation and the department must verify that the incumbent successfully participated in an Oral Fluency Examination prior to issuing the additional pay. During the period under review, February 1, 2019, through July 30, 2019, the DOJ issued bilingual pay to 46 employees. The CRU reviewed 22 of these bilingual pay authorizations to ensure compliance with applicable CalHR policies and guidelines. These are listed below:

Classification Bargaining Unit Time Base No. of Appts.


R01 Full-Time 2

Criminal Intelligence Specialist I R07 Full-Time 1 Criminal Intelligence Specialist III R07 Full-Time 1 Deputy Attorney General R02 Full-Time 1 Investigative Auditor II, Department of Justice

R01 Full-Time 1


R01 Full-Time 1

Investigative Auditor IV (Specialist), Department of Justice

R01 Full-Time 2


Classification Bargaining Unit Time Base No. of Appts.

Investigative Auditor IV (Supervisor), Department Of Justice

R01 Full-Time 1

Legal Assistant R04 Full-Time 1 Legal Secretary R04 Full-Time 2 Office Technician (Typing) R04 Full-Time 1 Program Technician II R04 Full-Time 1 Senior Legal Analyst R01 Full-Time 1 Special Agent Supervisor, Department of Justice

S07 Full-Time 1

Special Agent, Department of Justice R07 Full-Time 2 Staff Services Analyst (General) R01 Full-Time 3

FINDING NO. 18 – Bilingual Pay Authorization Complied with Civil Service Laws,

Board Rules, and/or CalHR Policies and Guidelines The CRU found that the bilingual pay authorized to employees during the compliance review period, satisfied civil service laws, Board rules and CalHR policies and guidelines. Pay Differentials A pay differential is special additional pay recognizing unusual competencies, circumstances, or working conditions applying to some or all incumbents in select classes. A pay differential may be appropriate in those instances when a subgroup of positions within the overall job class might have unusual circumstances, competencies, or working conditions that distinguish these positions from other positions in the same class. Typically, pay differentials are based on qualifying pay criteria such as: work locations or shift assignments; professional or educational certification; temporary responsibilities; special licenses, skills or training; performance-based pay; incentive-based pay; or, recruitment and retention. (Classification and Pay Manual Section 230.) California State Civil Service Pay Scales Section 14 describes the qualifying pay criteria for the majority of pay differentials. However, some of the alternate range criteria in the pay scales function as pay differentials. Generally, departments issuing pay differentials should, in order to justify the additional pay, document the following: the effective date of the pay differential, the collective bargaining unit identifier, the classification applicable to the salary rate and conditions along with the specific criteria, and any relevant documentation to verify the employee meets the criteria.


During the period under review, February 1, 2019, through July 30, 2019, the DOJ issued pay differentials25 to 356 employees. The CRU reviewed 50 of these pay differentials to ensure compliance with applicable CalHR policies and guidelines. These are listed below:

Classification Pay Differential Monthly Amount

Assistant Bureau Chief, Division Of Law Enforcement, Department Of Justice (Non-Peace Officer)

209 $300

Assistant Bureau Chief, Division Of Law Enforcement, Department Of Justice

47 $250

Assistant Bureau Chief, Division Of Law Enforcement, Department Of Justice

47 $250

CEA 47 $350 CEA 47 $250 Criminalist 209 $300 Criminalist 209 $300 Criminalist Supervisor 209 $300 Executive Secretary Research Advisory Panel

269 $2,000

Information Technology Associate 13 5% Information Technology Associate 13 5% Information Technology Specialist I

13 5%

Legal Office Administrator I 141 2 Steps

Legal Secretary 141 2 Steps

Legal Secretary 141 2 Steps Legal Secretary 141 1 Step Legal Secretary 141 1 Step Legal Support Supervisor I 141 1 Step Legal Support Supervisor II 141 2 Steps

Legal Support Supervisor II 141 2 Steps

Precision Electronics Specialist 433 4% Principal Librarian 120 10% Security Officer I, Department Of Justice

244 $75

Security Officer II, Department of Justice

245 4%

Senior Criminalist 209 $300

25 For the purposes of CRU’s review, only monthly pay differentials were selected for review at this time.



Senior Criminalist 209 $300 Senior Criminalist 209 $300 Senior Criminalist 209 $300 Senior Criminalist 209 $300 Senior Criminalist 209 $300 Special Agent Supervisor, Department of Justice

245 8%

Special Agent Supervisor, Department of Justice

245 2%


245 4%


245 2%


245 4%

Special Agent Supervisor, Department Of Justice

245 3%


244 $100


244 $125


244 $125


245 3%


245 2%


245 6%

Special Agent, Department Of Justice

244 $125


244 $125


244 $125


244 $125


244 $125


244 $50




244 $125


245 8%

FINDING NO. 19 – Incorrect Authorization of Pay Differentials

Summary: The CRU found 1 error in the 50 pay differentials reviewed:

Classification Area Description of Finding(s) Criteria

Senior Criminalist

DNA Pay Differential for Bureau of Forensic Services

The employee did not receive the pay differential

on the date they were eligible and approved by the DOJ resulting in an

underpayment.

Pay Differential 209

Criteria: A pay differential may be appropriate when a subgroup of positions

within the overall job class might have unusual circumstances, competencies, or working conditions that distinguish these positions from other positions in the same class. Pay differentials are based on qualifying pay criteria such as: work locations or shift assignments; professional or educational certification; temporary responsibilities; special licenses, skills or training; performance-based pay; incentive-based pay; or recruitment and retention. (CalHR Classification and Pay Manual Section 230.)

Severity: Very Serious. The DOJ failed to comply with the state civil service

pay plan by incorrectly applying compensation laws and rules in accordance with CalHR’s policies and guidelines. This results in civil service employees receiving incorrect and/or inappropriate compensation.

Cause: The DOJ acknowledges that the employee did not receive the pay

differential at the time of their eligibility. Corrective Action: Within 90 days of the date of this report, the DOJ must submit to the

SPB a written corrective action response which addresses the


corrections the department will implement to ensure conformity with Pay Differential 209 and ensure that employees are compensated correctly and that transactions are keyed accurately. Additionally, the DOJ must verify that the underpaid employee has been appropriately compensated. Copies of relevant documentation demonstrating that the corrective action has been implemented must be included with the corrective action response.

Out-of-Class Assignments and Pay For excluded26 and most rank and file employees, out-of-class (OOC) work is defined as performing, more than 50 percent of the time, the full range of duties and responsibilities allocated to an existing class and not allocated to the class in which the person has a current, legal appointment. (Cal. Code Regs., tit. 2, § 599.810, subd. (a)(2).) A higher classification is one with a salary range maximum that is any amount higher than the salary range maximum of the classification to which the employee is appointed. (Cal. Code Regs., tit. 2, § 599.810, subd. (a)(3).) According to the Classification and Pay Guide, OOC assignments should only be used as a last resort to accommodate temporary staffing needs. All civil service alternatives should be explored first before using OOC assignments. However, certain MOU provisions and the California Code of Regulations, title 2, section 599.810 allow for short-term OOC assignments to meet temporary staffing needs. Should OOC work become necessary, the assignment would be made pursuant to the applicable MOU provisions or salary regulations. Before assigning the OOC work, the department should have a plan to correct the situation before the 120-day time period expires. (Classification and Pay Guide Section 375.) During the period under review, January 31, 2019, through July 30, 2019, the DOJ issued OOC pay to 25 employees. The CRU reviewed all 25 of these OOC assignments to ensure compliance with applicable MOU provisions, salary regulations, and CalHR policies and guidelines. These are listed below:


Unit Out-of-Class Classification

Time Frame

Deputy Attorney General IV

R02 Supervising Deputy Attorney General

1/31/19-2/28/19

26 “Excluded employee” means an employee as defined in section 3527, subd. (b) of the Government Code (Ralph C. Dills Act) except those excluded employees who are designated managerial pursuant to section 18801.1 of the Government Code.




Time Frame

Senior Criminalist R07 Criminalist Supervisor

1/31/19-7/30/1927

Criminalist Supervisor S07 Criminalist Manager 1/31/19-6/30/19 Deputy Attorney General IV


3/1/19-3/31/19

Deputy Attorney General IV


5/31/19-7/30/19


S02 CEA 5/31/19-6/30/19

Accounting Administrator II

S01 Accounting Administrator III

1/31/19-2/6/19


R07 Criminal Intelligence and Identification Supervisor

1/31/19-2/28/19



4/1/19-4/30/19

Staff Services Manager I S01 Staff Services Manager II

5/1/19-6/30/19

Criminalist Supervisor S07


1/31/19-5/30/19



1/31/19-3/5/19


R07


1/31/19-2/28/19


R07 Criminal Identification Specialist III

5/13/19-5/30/19


S02 CEA 3/16/19-5/30/19

Staff Services Analyst R01 Administrative Assistant II

3/4/19-5/3/19

27 Bargaining Unit 7 members may work in an OOC assignment beyond 120 days.




Time Frame

Special Agent-in-Charge, Department of Justice

M07

Assistant Bureau Chief, Division of Law Enforcement, Department of Justice

1/31/19-3/15/19

Legal Support Supervisor II

S04 Legal Office Administrator I

1/31/19-5/30/19



3/6/19-3/31/19

Staff Services Manager I S01 Staff Services Manager II

3/1/19-4/30/19


S04 Staff Services Manager II

2/19/19-6/18/19

Accounting Administrator II

S01 Accounting Administrator III

2/7/19-3/31/19

Staff Services Analyst R01 Associate Personnel Analyst

1/31/2019-3/13/19


R04 Staff Services Manager II

6/19/19-7/30/19


R07 Criminal Identification Specialist III

5/13/19-5/30/19

FINDING NO. 20 – Incorrect Authorization of Out-of-Class Pay

Summary: The CRU found three errors in the DOJ’s authorization of OOC pay:

Classification Out-of-Class Classification

Description of Finding(s) Criteria


Supervising Deputy Attorney

General

Employee was undercompensated for

the April 2019 pay period.

Pay Differential 91

Senior Criminalist

Criminalist Supervisor

Employee was undercompensated for the February 2019 pay

period.

Pay Differential 92


Classification Out-of-Class Classification

Description of Finding(s) Criteria

Special Agent in Charge, Department of Justice

Assistant Bureau Chief,

Division of Law Enforcement, Department of

Justice

OOC pay for managerial employee commenced

before the 91st day. Pay Differential 101

Criteria: Employees may be compensated for performing duties of a higher

classification provided that: the assignment is made in advance in writing and the employee is given a copy of the assignment; and the duties performed by the employee are not described in a training and development assignment and further, taken as a whole, are fully consistent with the types of jobs described in the specification for the higher classification; and the employee does not perform such duties for more than 120 days in a fiscal year. (Cal. Code Regs., tit. 2, § 599.810, subd. (b)(1)(3)(4).)

For excluded employees, there shall be no compensation for assignments that last for 15 consecutive working days or less. (Cal. Code Regs., tit. 2, § 599.810, subd. (c).) An excluded employee performing in a higher class for more than 15 consecutive working days shall receive the rate of pay the excluded employee would receive if appointed to the higher class for the entire duration of the assignment, not to exceed one year. (Cal. Code Regs., tit. 2, § 599.810, subd. (d).) An excluded employee may be assigned out-of-class work for more than 120 calendar days during any 12-month period only if the appointing power files a written statement with the CalHR certifying that the additional out-of-class work is required to meet a need that cannot be met through other administrative or civil service alternatives. (Cal. Code Regs., tit. 2, § 599.810, subd. (e).)

Severity: Very Serious. The DOJ failed to comply with the state civil service

pay plan by incorrectly applying compensation laws and rules in accordance with CalHR’s policies and guidelines. This results in civil service employees receiving incorrect and/or inappropriate compensation.


Cause: Deputy Attorney General III: The DOJ states that the employee received a promotion in place that was effective the same date as the OOC assignment. The promotion in place was retroactive and keyed late, which caused the error in calculating the OOC pay.

Senior Criminalist: The DOJ agrees that there was an error in

calculating the OOC pay for this employee. Special Agent in Charge, Department of Justice: The DOJ states that

this employee was placed on a paid emergency acting assignment for 60 working days and subsequently placed on the OOC assignment. The DOJ further states that the employee was not compensated for the OOC assignment until the 91st day, in which the 60-day paid emergency acting assignment was used towards the 90-day waiting period. The DOJ asserts there are no rules or regulations that they are aware of that prohibit the use of an emergency acting assignment prior to an OOC assignment. Furthermore, the DOJ claims they received direction from the CalHR in 2015 that an acting assignment prior to an OOC assignment was appropriate.

SPB Response: The Classification and Pay Guide (C&P) Section 375 does not allow

for acting assignments to count towards the 90 day period prior to commencement of pay on the 91st day. The C&P Guide specifically states “NOTE: SPB Rule 302.3 should not be used when the acting assignment can reasonably meet the OOC provisions in current MOU agreement or in the Rule 599.810.” In addition, Rule 302.3, pertaining to acting assignments, should not be used in sequence with MOU or DPA Rule 599.810.


SPB a written corrective action response which addresses the corrections the department will implement to ensure conformity with Government Code section 599.810 and Pay Differentials 91, 92, and 101. Copies of relevant documentation demonstrating that the corrective action has been implemented must be included with the corrective action response.


Leave Positive Paid Employees Actual Time Worked (ATW) is a method that can be used to keep track of a Temporary Authorization Utilization (TAU) employee’s time to ensure that the Constitutional limit of 9 months in any 12 consecutive months is not exceeded. The ATW method of counting time is used in order to continue the employment status for an employee until the completion of an examination, for seasonal type work, while attending school, or for consulting services. An employee is appointed TAU-ATW when he/she is not expected to work all of the working days of a month. When counting 189 days, every day worked, including partial days28 worked and paid absences, 29 is counted. (Cal. Code Regs., tit. 2, § 265.1, subd. (b).) The hours worked in one day is not limited by this rule. (Ibid.) The 12-consecutive month timeframe begins by counting the first pay period worked as the first month of the 12-consecutive month timeframe. (Ibid.) The employee shall serve no longer than 189 days in a 12 consecutive month period. (Ibid.) A new 189-days working limit in a 12-consecutive month timeframe may begin in the month immediately following the month that marks the end of the previous 12-consecutive month timeframe. (Ibid.) It is an ATW appointment because the employee does not work each workday of the month, and it might become desirable or necessary for the employee to work beyond nine calendar months. The appointing power shall monitor and control the days worked to ensure the limitations set forth are not exceeded. (Cal. Code Regs., tit. 2, § 265.1, subd. (f).) For student assistants, graduate student assistants, youth aides, and seasonal classifications a maximum work-time limit of 1500 hours within 12 consecutive months may be used rather than the 189-day calculation. (Cal. Code Regs., tit. 2, § 265.1, subd. (d).) Generally, permanent intermittent employees may work up to 1500 hours in any calendar year. (Applicable Bargaining Unit Agreements.) However, Bargaining Unit 6 employees may work up to 2000 hours in any calendar year.

28 For example, two hours or ten hours counts as one day. 29 For example, vacation, sick leave, compensating time off, etc.


Additionally, according to Government Code section 21224, retired annuitant appointments shall not exceed a maximum of 960 hours in any fiscal year (July-June), regardless of the number of state employers, without reinstatement, loss or interruption of benefits. At the time of the review, the DOJ had 289 positive paid employees whose hours were tracked. The CRU reviewed 49 of those positive paid appointments to ensure compliance with applicable laws, regulations, policies and guidelines, which are listed below:

Classification Tenure Time Frame Time Worked

Seasonal Clerk Temporary 1/1/2018-

12/31/2018 1468


07/30/19 1412.5

Seasonal Clerk Temporary 3/1/18-2/28/19

1641.5


1317.25


1515.55


1112


1493


1791


1567


12/31/18 1383.5


1509


1993.25


1121.61


07/30/19 1587


1078.25


1267


Classification Tenure Time Frame Time Worked


1296.5


1242


1414

Student Assistant Temporary 3/1/18-2/28/19

1489.5


1422.5


1465


1362

Student Assistant Temporary 8/1/18-

07/30/19 1557


1881.75


1421


1134


624


1212.5


917.5


992.5

Youth Aid Temporary 5/31/18-5/30/19

1437.5


975.75


837.5


Retired 7/1/18-6/30/19

954.75


Retired 7/1/18-6/30/19

955.00


Retired 7/1/18-6/30/19

960.00


Classification Tenure Time Frame Time Worked Associate Business Management Analyst

Retired 7/1/18-6/30/19

960.00

Deputy Attorney General IV Retired 7/1/18-6/30/19

958.00

Deputy Attorney General IV Retired 7/1/18-6/30/19

960.00


Retired 7/1/18-6/30/19

953.00


Retired 7/1/18-6/30/19

958.50

Latent Print Analyst II Retired 7/1/18-6/30/19

957.5

Senior Legal Analyst Retired 7/1/18-6/30/19

956.00

Senior Personnel Specialist Retired 7/1/18-6/30/19

948.00


Retired 7/1/18-6/30/19

944.00


Retired 7/1/18-6/30/19

900.00

Staff Services Analyst Retired 7/1/18-6/30/19

960.00

Staff Services Manager II (Managerial)

Retired 7/1/18-6/30/19

960.00

FINDING NO. 21 – Positive Paid Employees Exceeded the Nine Month Limitation

in Any Twelve Consecutive Month Period

Summary: The DOJ did not consistently monitor the actual number of days

and/or hours worked in order to ensure that positive paid employees did not exceed the 189-day or 1,500-hour limitation in any 12-consecutive month period. Specifically, the following employees exceeded the 1,500-hour, or 189-day, limitation:

Classification Tenure Time Frame Time

Worked

Time Worked

Over Limit

Seasonal Clerk Temporary 3/1/18-2/28/19 1641.5 141.5


Seasonal Clerk Temporary 11/30/18-11/30/19 1791 291


Classification Tenure Time Frame Time

Worked

Time Worked

Over Limit





Student Assistant Temporary 8/1/18-07/30/19 1557 57

Student Assistant Temporary 7/1/18-6/30/19 1881.75 381.75

Criteria: If any employee is appointed to an intermittent time base position on

a TAU basis, there are two controlling time limitations that must be considered. The first controlling factor is the constitutional limit of nine months in any 12 consecutive months for temporary appointments that cannot be extended for any reason. (Cal Const., art. VII § 5.) Time worked shall be counted on a daily basis with every 21 days worked counting as one month or 189 days equaling nine months. (Cal. Code Regs., tit. 2, § 265.1 subd. (b).) Another controlling factor limits the maximum work time for student, youth, and seasonal classifications to 1,500 hours. (Cal. Code Regs., tit. 2, § 265.1, subd. (d).)

Severity: Serious. The number of days or hours an individual may work in a

temporary appointment is limited in the state civil service. TAU appointments are distinguished from other appointments as they can be made in the absence of an appropriate employment list. Intermittent appointments are not to be used to fill full-time or part-time positions. Such use would constitute illegal circumvention of these eligible lists

Cause: The DOJ states that they were tracking the 1500-hour working

limitation for temporary intermittent employees via a January through December calendar year, instead of tracking their 1500-hour working limitation based on the employee’s start date.


SPB a written corrective action response which addresses the corrections the department will implement to ensure conformity with


California Code of Regulations, title 2, section 265.1. Copies of relevant documentation demonstrating that the corrective action has been implemented must be included with the corrective action response.

Administrative Time Off ATO is a form of paid administrative leave status initiated by appointing authorities for a variety of reasons. (Human Resources Manual Section 2121.) Most often, ATO is used when an employee cannot come to work because of a pending investigation, fitness for duty evaluation, or when work facilities are unavailable. (Ibid.) ATO can also be granted when employees need time off for reasons such as blood or organ donation; extreme weather preventing safe travel to work; states of emergency; voting; and when employees need time off to attend special events. (Ibid.) During the period under review, May 1, 2018, through April 30, 2019, the DOJ authorized 93 ATO transactions. The CRU reviewed 43 of these ATO appointments to ensure compliance with applicable laws, regulations, and CalHR policy and guidelines, which are listed below:

Classification Time Frame Amount of Time on

ATO

Associate Personnel Analyst September 2018 2 hours

Criminalist February 2019 24 hours


Criminalist August 2018 18 hours



Criminalist November 2018 8 hours

Criminalist July 2018 11 hours

Criminalist Supervisor February 2019 24 hours

Deputy Attorney General V November 2018 40 hours



ATO

Deputy Attorney General V July 2018 72 hours

Field Representative, Department of Justice

April 2019 156 hours

Latent Print Analyst I February 2019 24 hours

Latent Print Analyst II February 2019 24 hours

Latent Print Supervisor June 2018 16 hours

Legal Analyst November 2018 2 hours

Legal Secretary July 2018 72 hours

Legal Secretary March 2019 9 hours

Legal Secretary June 2018 9 hours

Legal Secretary February 2019 31 hours

Legal Secretary November 2018 8 hours

Legal Secretary November 2018 9 hours

Legal Support Supervisor I November 2018 9.5 hours

Legal Support Supervisor I October 2018 8 hours

Office Assistant (General) March 2019 48 hours

Office Technician (Typing) February 2019 27 hours

Program Technician II April 2019 168 hours

Property Controller II February 2019 18 hours

Property Controller II June 2018 4 hours

Property Controller II February 2019 26 hours

Senior Criminalist August 2018 37 hours

Senior Criminalist February 2019 16 hours



ATO

Senior Criminalist February 2019 27 hours

Senior Legal Analyst November 2018 2 hours

Special Agent, Department of Justice May 2018 2 hours

Special Agent, Department of Justice September 2018 4 hours

Special Agent, Department of Justice July 2018 10 hours

Special Agent, Department of Justice August 2018 176 hours

Special Agent, Department of Justice November 2018 20 hours

Special Agent, Department of Justice August 2018 18.5 hours

Staff Services Analyst (General) May 2018 40 hours

Supervising Deputy Attorney General November 2018 8 hours

Supervising Librarian I November 2018 8 hours

FINDING NO. 22 – Administrative Time Off Was Not Properly Documented

Summary: The DOJ did not grant ATO in conformity with the established

policies and procedures. Of the 43 ATO authorizations reviewed by the CRU, 7 were found to be out of compliance for failing to document justification for ATO.

Criteria: Appointing authorities are authorized to approve ATO for up to five (5) working days. (Gov. Code, § 19991.10.) Furthermore, they “have delegated authority to approve up to 30 calendar days.” (Human Resources Manual Section 2121.) Any ATO in excess of 30 calendar days must be approved in advance by the CalHR. (Ibid.) In most cases, if approved, the extension will be for an additional 30 calendar days. (Ibid.) The appointing authority is responsible for submitting ATO extension requests to CalHR at least 5 working days prior to the expiration date of the approved leave. (Ibid.)


When requesting an ATO extension, the appointing authority must provide a justification establishing good cause for maintaining the employee on ATO for the additional period of time. (Ibid.) ATO may not be used and will not be granted for an indefinite period. (Ibid.) If CalHR denies a request to extend ATO, or the appointing authority fails to request approval from CalHR to extend the ATO, the employee must be returned to work in some capacity. (Ibid.) Regardless of the length of ATO, appointing authorities must maintain thorough documentation demonstrating the justification for the ATO, the length of the ATO, and the approval of the ATO. (Ibid.)

Severity: Serious. Because an employee on ATO is being paid while not

working, a failure to closely monitor ATO usage could result in costly abuse. The use of ATO is subject to audit and review by CalHR and other control agencies to ensure policy compliance. Findings of non-compliance may result in the revocation of delegated privileges.

Cause: The DOJ agrees with one of the noncompliant ATO findings, in which

the DOJ states their records did not produce the precise circumstances under which the ATO was granted.

However, the DOJ disagrees with the remaining six noncompliant

ATO findings. The DOJ asserts that the employees’ timesheets suffice as thorough documentation for justification for the ATO.

SPB Response: Human Resources Manual Section 2121 states “regardless of the

length of ATO, appointing authorities must maintain thorough documentation demonstrating the justification for the ATO, the length of the ATO, and the approval of the ATO. For example, if a department director grants his or her employees one hour of ATO to supplement their lunch hour in order to attend a team-building office event, documentation must be maintained that explains the amount of leave authorized, the number of employees affected, the nature of the event, and why allowing paid administrative leave for the time period confers a benefit on the department and the state.”

Corrective Action: Within 90 days of the date of this report, the DOJ must submit to the SPB a written corrective action response which addresses the


corrections the department will implement to ensure conformity with Government Code section 19991.10 and Human Resources Manual Section 2121. Copies of relevant documentation demonstrating that the corrective action has been implemented must be included with the corrective action response.

Leave Auditing and Timekeeping Departments must keep complete and accurate time and attendance records for each employee and officer employed within the agency over which it has jurisdiction. (Cal. Code Regs., tit. 2, § 599.665.) Departments are directed to create a monthly internal audit process to verify all leave input into any leave accounting system is keyed accurately and timely. (Human Resources Manual Section 2101.) Departments shall create an audit process to review and correct leave input errors on a monthly basis. The review of leave accounting records shall be completed by the pay period following the pay period in which the leave was keyed into the leave accounting system. (Ibid.) If an employee’s attendance record is determined to have errors or it is determined that the employee has insufficient balances for a leave type used, the attendance record must be amended. (Ibid.) Attendance records shall be corrected by the pay period following the pay period in which the error occurred. (Ibid.) Accurate and timely attendance reporting is required of all departments and is subject to audit. (Ibid.) During the period under review, January 31, 2019, through April 30, 2019, the DOJ reported 137 units comprised of 4,778 active employees. The pay periods and timesheets reviewed by the CRU are summarized below:

Timesheet Leave Period

Unit Reviewed Number of Employees

Number of Timesheets Reviewed

Number of Missing

Timesheets

Feb 2019 173 19 19 0

March 2019 025 19 19 0

March 2019 571 32 32 0

March 2019 753 6 5 1

April 2019 016 10 10 0

April 2019 455 20 20 0

April 2019 705 53 47 0


FINDING NO. 23 – Department Has Not Implemented a Monthly Internal Audit

Process to Verify All Leave Input Is Keyed Accurately and Timely

Summary: The DOJ failed to implement a monthly internal audit process to

verify all timesheets were keyed accurately and timely. Specifically, the DOJ failed to retain one timesheet in the March 2019 pay period and incorrectly keyed one timesheet, which resulted in one hour of overpayment in the March 2019 pay period. Additionally, during the March 2019 pay period, the DOJ failed to complete the Leave Activity and Certification form timely for one unit reviewed.

Criteria: Each appointing power shall keep complete and accurate time attendance records for each employee and officer employed within the agency over which it has jurisdiction. (Cal. Code Regs., tit. 2, § 599.665.) Departments are directed to create an audit process to verify all leave input is keyed accurately and timely. (Human Resources Manual Section 2101.) Attendance records shall be corrected by the pay period following the pay period in which the error occurred. (Ibid.)

Severity: Serious. In order for Department leave accounting reports to reflect

accurate data, the review of the leave accounting records and corrections, if necessary, are to be completed by the pay period following the pay period in which the leave was keyed into the leave accounting system. This means corrections are to be made prior to the next monthly leave activity report being produced.

Cause: The DOJ states that timesheets and leave certifications with errors

were due to entries keyed in late or inaccurately, or unavailable.


SPB a written corrective action response which addresses the corrections the department will implement to ensure that their monthly internal audit process was documented and that all leave input is keyed accurately and timely. Copies of relevant documentation demonstrating that the corrective action has been implemented must be included with the corrective action response.


Leave Reduction Efforts Departments must create a leave reduction policy for their organization and monitor employees’ leave to ensure compliance with the departmental leave policy; and ensure employees who have significant “over-the-cap” leave balances have a leave reduction plan in place. (Human Resources Manual Section 2124.)

Applicable Memorandums of Understanding and the California Code of Regulations prescribe the maximum amount of vacation or annual leave permitted. “If a represented employee is not permitted to use all of the vacation to which he or she is entitled in a calendar year, the employee may accumulate the unused portion.”30 (Cal. Code Regs., tit. 2, § 599.737.) If it appears an excluded employee will have a vacation or annual leave balance that will be above the maximum amount31 as of January 1 of each year, the appointing power shall require the supervisor to notify and meet with each employee so affected by the preceding July 1, to allow the employee to plan time off, consistent with operational needs, sufficient to reduce their balance to the amount permitted by the applicable regulation, prior to January 1. (Cal. Code Regs., tit. 2, § 599.742.1.)

It is the intent of the state to allow employees to utilize credited vacation or annual leave each year for relaxation and recreation, ensuring employees maintain the capacity to optimally perform their jobs. (Cal. Code Regs., tit. 2, § 599.742.1.) For excluded employees, the employee shall also be notified by July 1 that, if the employee fails to take off the required number of hours by January 1, the appointing power shall require the employee to take off the excess hours over the maximum permitted by the applicable regulation at the convenience of the agency during the following calendar year. (Ibid.) To both comply with existing civil service rules and adhere to contemporary human resources principles, state managers and supervisors must cultivate healthy work- life balance by granting reasonable employee vacation and annual leave requests when operationally feasible. (Human Resources Manual Section 2124.)

As of December 2018, 243 DOJ employees exceeded the established limits of vacation or annual leave. The CRU reviewed 60 of those employees’ leave reduction plans to ensure compliance with applicable laws, regulations and CalHR policy and guidelines, which are listed below:

30 For represented employees, the established limit for annual or vacation leave accruals is 640 hours, however for Bargaining Unit 06 there is no established limit and for Bargaining Unit 05 the established limit is 816 hours. 31 Excluded employees shall not accumulate more than 80 days.


Classification Collective Bargaining Identifier

Total Hours Over

Established Limit

Leave Reduction Plan

Provided

Administrative Assistant I C01 355 Yes Assistant Bureau Chief, Division of Law Enforcement, Department of Justice (Non-Peace Officer)

M07 316.5 Yes

Career Executive Assignment M01 998 Yes Career Executive Assignment M01 725 Yes Career Executive Assignment M01 497.1 Yes Career Executive Assignment M01 268 Yes Department of Justice Administrator II

M07 214.5 Yes

Deputy Attorney General III R02 153 Yes Deputy Attorney General IV R02 143 Yes Deputy Attorney General IV R02 129.98 Yes Deputy Attorney General IV R02 114 Yes Deputy Attorney General IV R02 200 Yes Deputy Attorney General V R02 194 Yes Deputy Attorney General V R02 180 Yes Deputy Attorney General V R02 182.75 Yes Deputy Attorney General V R02 1143 Yes Deputy Attorney General V R02 928 Yes Deputy Attorney General V R02 850 Yes Deputy Attorney General V R02 315.8 Yes Deputy Attorney General V R02 331 Yes Deputy Attorney General V R02 400 Yes Deputy Attorney General V R02 798.2 Yes Deputy Attorney General V R02 56 Yes Deputy Attorney General V R02 360 Yes Deputy Attorney General V R02 287 Yes Deputy Attorney General V R02 164 Yes Information Technology Manager I M01 97.5 Yes Information Technology Manager II M01 169 Yes Information Technology Specialist I

R01 483 Yes


R01 214.25 Yes


R01 217.5 Yes


R01 60 Yes



Total Hours Over

Established Limit


Provided


S01 351.3 Yes


S01 546 Yes


S01 277.2 Yes

Investigative Auditor IV (Specialist), Department of Justice

R01 301 Yes

Latent Print Analyst II R07 123 Yes Latent Print Analyst II R07 842 Yes Latent Print Supervisor S07 142 Yes Program Technician II R04 610.5 Yes Security Officer II S07 243 Yes Senior Criminalist R07 124.75 Yes Senior Criminalist R07 1196.5 Yes Senior Legal Analyst R01 1646.75 Yes Senior Management Auditor S01 318 Yes Senior Management Auditor S01 71 Yes Special Agent Supervisor, Department of Justice

R07 555 Yes


R07 245.5 Yes


R07 16.5 Yes


R07 1701 Yes


R07 360 Yes


M07 246.25 Yes


S02 99 Yes


S02 456.3 Yes


S02 749 Yes


S02 109 Yes


S02 399 Yes



Total Hours Over

Established Limit


Provided


S02 67 Yes


S02 233 Yes


S02 1302 Yes

Total 24876.63

FINDING NO. 25 – Leave Reduction Plans Complied with Civil Service Laws, Board Rules, and CalHR Policies and Guidelines

The CRU reviewed employee vacation and annual leave to ensure that those employees who have significant “over-the-cap” leave balances have a leave reduction plan in place and are actively reducing hours. In addition, the CRU reviewed the department’s leave reduction policy to verify its compliance with applicable rule and law, and to ensure its accessibility to employees. Based on our review, the CRU found no deficiencies in this area. State Service

The state recognizes two different types of absences while an employee is on pay status; paid or unpaid. The unpaid absences can affect whether a pay period is considered to be a qualifying or non-qualifying pay period for state service and leave accruals. Generally, an employee who has 11 or more working days of service in a monthly pay period shall be considered to have a complete month, a month of service, or continuous service.32 (Cal. Code Regs., tit. 2, § 599.608.) Full time and fractional employees who work less than 11 working days in a pay period will have a non-qualifying month and will not receive state service or leave accruals for that month. Hourly or daily rate employees working at a department in which the full-time workweek is 40 hours who earn the equivalent of 160 hours of service in a monthly pay period or

32 Government Code sections 19143, 19849.9, 19856.1, 19858.1, 19859, 19861, 19863.1, 19997.4 and California Code of Regulations, title 2, sections 599.609, 599.682, 599.683, 599.685, 599.687, 599.737, 599.738, 599.739, 599.740, 599.746, 599.747, 599.776.1, 599.787, 599.791, 599.840 and 599.843 provide further clarification for calculating state time.


accumulated pay periods shall be considered to have a complete month, a month of service, or continuous service. (Cal. Code Regs., tit. 2, § 599.609.) For each qualifying monthly pay period, the employee shall be allowed credit for vacation with pay on the first day of the following monthly pay period. (Cal. Code Regs. tit. 2, § 599.608.) When computing months of total state service to determine a change in the monthly credit for vacation with pay, only qualifying monthly pay periods of service before and after breaks in service shall be counted. (Cal. Code Regs. tit. 2 , § 599.739.) Portions of non-qualifying monthly pay periods of service shall not be counted nor accumulated. (Ibid.) On the first day following a qualifying monthly pay period, excluded employees33 shall be allowed credit for annual leave with pay. (Cal. Code Regs., tit. 2, § 599.752.) Permanent intermittent employees also earn leave credits on the pay period following the accumulated accrual of 160 hours worked. Hours worked in excess of 160 hours in a monthly pay period, are not counted or accumulated towards leave credits. During the period under review, February 1, 2019, through July 30, 2019, the DOJ had 85 employees with non-qualifying pay period transactions. The CRU reviewed 28 transactions to ensure compliance with applicable laws, regulations and CalHR policy and guidelines, which are listed below:

Type of Transaction Time base Number Reviewed

Qualifying Pay Period Part Time 1

Qualifying Pay Period Full Time 11

Non-Qualifying Pay Period Full Time 16

FINDING NO. 25 – Service and Leave Transactions Complied with Civil Service

Laws, Board Rules, and/or CalHR Policies and Guidelines The CRU determined that the DOJ ensured employees with non-qualifying pay periods did not receive vacation/sick leave, annual leave, and/or state service accruals. The CRU found no deficiencies in this area.

33 As identified in Government Code sections 19858.3, subd. (a), 19858.3, subd. (b), or 19858.3, subd. (c) or as it applies to employees excluded from the definition of state employee under Government Code section 3513, subd. (c) or California Code of Regulations, title 2, section 599.752 subd. (a), and appointees of the Governor as designated by the Department and not subject to section 599.752.1.


Policy and Processes Nepotism It is the policy of the State of California to recruit, hire and assign all employees on the basis of merit and fitness in accordance with civil service statutes, rules and regulations. (Human Resources Manual Section 1204.) Nepotism is expressly prohibited in the state workplace because it is antithetical to California’s merit based civil service. (Ibid.) Nepotism is defined as the practice of an employee using his or her influence or power to aid or hinder another in the employment setting because of a personal relationship. (Ibid.) Personal relationships for this purpose include but are not limited to, association by blood, adoption, marriage and/or cohabitation. (Ibid.) All department nepotism policies should emphasize that nepotism is antithetical to a merit-based personnel system and that the department is committed to the state policy of recruiting, hiring and assigning employees on the basis of merit. (Ibid.)

FINDING NO. 26 – Nepotism Policy Complied with Civil Service Laws, Board Rules, and/or CalHR Policies and Guidelines

The CRU verified that the policy was disseminated to all staff and emphasized the DOJ’s commitment to the state policy of recruiting, hiring and assigning employees on the basis of merit. Additionally, the DOJ’s nepotism policy was comprised of specific and sufficient components intended to prevent favoritism, or bias, based on a personal relationship from unduly influencing employment decisions.

Workers’ Compensation Employers shall provide to every new employee, either at the time of hire or by the end of the first pay period, written notice concerning the rights, benefits, and obligations under workers’ compensation law. (Cal. Code Regs., tit. 8, § 9880 subd. (a).) This notice shall include the right to predesignate their personal physician or medical group; a form that the employee may use as an optional method for notifying the employer of the name of employee’s “personal physician,” as defined by Labor Code section 4600. (Cal. Code Regs., tit. 8, § 9880 subds. (c)(7) & (8).) Additionally, within one working day of receiving notice or knowledge that the employee has suffered a work related injury or illness, employers shall provide a claim form and notice of potential eligibility for benefits to the injured employee. (Labor Code, § 5401 subd. (a).) Public employers may choose to extend workers' compensation coverage to volunteers that perform services for the organization. (Human Resources Manual Section 1415.)


Workers’ compensation coverage is not mandatory for volunteers as it is for employees. (Ibid.) This is specific to the legally uninsured state departments participating in the Master Agreement. (Ibid.) Departments with an insurance policy for workers’ compensation coverage should contact their State Compensation Insurance Fund (State Fund) office to discuss the status of volunteers. (Ibid.) FINDING NO. 27 – Workers’ Compensation Process Complied with Civil Service

Laws, Board Rules, and/or CalHR Policies and Guidelines The CRU verified that the DOJ provides notice to their employees to inform them of their rights and responsibilities under California’s Workers’ Compensation Law. Furthermore, the CRU verified that when the DOJ received worker’s compensation claims, they properly provided claim forms within one working day of notice or knowledge of injury. Performance Appraisals According to Government Code section 19992.2, subdivision (a), appointing powers must “prepare performance reports.” Furthermore, California Code of Regulations, title 2, section 599.798, directs supervisors to conduct written performance appraisals and discuss overall work performance with permanent employees at least once in each twelve calendar months after the completion of the employee’s probationary period. The CRU selected 115 permanent DOJ employees to ensure that the department was conducting performance appraisals on an annual basis in accordance with applicable laws, regulations, policies and guidelines. These are listed below:

Classification Date Performance

Appraisals Due

Accounting Officer (Specialist) 11/30/2018

Accounting Officer (Specialist) 6/30/2018

Accounting Officer (Specialist) 3/20/2018 Assistant Bureau Chief, Division of Law Enforcement, Department of Justice (Non-Peace Officer)

5/31/2018

Associate Governmental Program Analyst 10/17/2018







Appraisals Due




Business Service Officer II (Supervisor) 1/29/2018

Criminal Identification and Intelligence Supervisor 2/29/2018

Criminal Identification and Intelligence Supervisor 7/13/2018

Criminal Identification Specialist II 11/16/2018





Criminal Intelligence Specialist I 5/1/2018

Criminal Intelligence Specialist III 8/8/2018

Criminal Intelligence Specialist III 7/30/2018

Criminalist 9/30/2018

Criminalist 10/1/2018

Criminalist Supervisor 7/30/2018

Deputy Attorney General 8/21/2018



Deputy Attorney General III 7/5/2018











Deputy Attorney General V 12/1/2018





Appraisals Due





















Deputy Attorney General V 5/10/2018 Deputy Attorney General V 12/2/2018 Deputy Attorney General V 12/2/2018














Appraisals Due


Field Representative, Department of Justice 1/6/2018

Investigative Auditor III, Department of Justice 7/1/2018

Legal Secretary 10/12/2018



Legal Support Supervisor I 6/29/2018

Legal Support Supervisor II 12/1/2018

Office Technician (Typing) 12/30/2018




Personnel Specialist 4/3/2018

Program Technician II 11/1/2018



Program Technician III 10/19/2018




Senior Accounting Officer (Specialist) 7/29/2018

Senior Criminalist 1/30/2018

Senior Criminalist 9/1/2018

Senior Legal Analyst 5/1/2018





Special Agent, Department of Justice 11/29/2018




Staff Services Analyst (General) 7/17/2018

Staff Services Manager II (Supervisory) 12/1/2018



Appraisals Due

Staff Services Manager III 9/1/2018

Supervising Deputy Attorney General 8/31/2018

Supervising Deputy Attorney General 12/2/2018

Supervising Deputy Attorney General 3/3/2018 FINDING NO. 28 – Performance Appraisals Were Not Provided to All Employees

Summary: The DOJ did not provide annual performance appraisals to 88 of 115

employees reviewed after the completion of the employee’s probationary period.

Criteria: Appointing powers shall prepare performance reports and keep them

on file as prescribed by department rule. (Gov. Code, § 19992.2, subd. (a).) Each supervisor, as designated by the appointing power, shall make an appraisal in writing and shall discuss with the employee overall work performance at least once in each twelve calendar months following the end of the employee's probationary period. (Cal. Code Regs., tit. 2, § 599.798.)

Severity: Serious. The department does not ensure that all of its employees

are apprised of work performance issues and/or goals in a systematic manner.

Cause: The DOJ states that they place the responsibility upon the

employees’ supervisors and managers to not only provide the performance appraisals in a timely manner to the employees, but also ensure the original signed report is forwarded to the DOJ’s Office of Human Resources for placement into the employee’s official personnel file. The DOJ further states that this is a manual process and the cause for missing performance appraisals is due to constraints on being able to follow up in a timely and more frequent basis with the supervisors and managers.


SPB a written corrective action response which addresses the corrections the department will implement to ensure conformity with


Government Code section 19992.2 and California Code of Regulations, title 2, section 599.798. Copies of relevant documentation demonstrating that the corrective action has been implemented must be included with the corrective action response.

DEPARTMENTAL RESPONSE The DOJ’s response is attached as Attachment 1.

SPB REPLY Based upon the DOJ’s written response, the DOJ will comply with the corrective actions specified in these report findings. Within 90 days of the date of this report, a written corrective action response including documentation demonstrating implementation of the corrective actions specified, must be submitted to the CRU.

XAVIER BECERRA State of California

Attorney General DEPARTMENT OF JUSTICE

1300 I STREET, SUITE 125 P.O. BOX 944255

SACRAMENTO, CALIFORNIA 94244-2550

Public: (916) 210-6021 Telephone: (916) 210-6244 Facsimile: (916) 322-0112

E-Mail: [email protected]

September 11, 2020

Ms. Suzanne M. Ambrose

Executive Director

State Personnel Board

801 Capitol Mall

Sacramento, CA 95814

RE: SPB Compliance Audit DOJ Responses

Dear Ms. Ambrose:

The Department of Justice (DOJ) would like to thank the State Personnel Board (SPB)'s

Compliance Review Unit (CRU) for undertaking the 2019 DOJ Compliance Review. The

Executive Summary of this report summarizes 26 instances of compliance. Of these, 20 instances

(77%) were deemed very serious or serious issues of non-compliance. A stakeholder could

mistakenly conclude that DOJ perhaps lacks policies, procedures, and practices to comply with

the SPB requirements. We request that the Executive Summary be clarified that DOJ conforms

to its established practices and as many of the personnel matters involve manual processes,

human error is inherent. As discussed throughout the report, the conclusions of very serious or

serious non-compliance involve a single or a few transactions. Hence, we request that that the

Executive Summary and other concluding sections of this report reflect and quantify the extent

of non-compliance.

The DOJ has reviewed the report and provides the following information for your consideration

regarding the findings.

Specific Findings and Responses:

Finding NO. 1 - Candidate Who Did Not Meet the Minimum Qualifications Was Admitted

Into the Examination

Cause: The DOJ has established practices in place and exam staff understand that candidates

must meet the minimum qualifications (MQ) by the announced cut-off date or final filing date;

however, allowing this candidate into the exam was an oversight that is not normal practice. The

candidate was mistakenly allowed into the exam 26 days before the announced cut-off date.

Attachment 1

Response: This mistake was 1 out of the total 646 audited applications, which comes to an error

rate of 0.002%. While the goal and the law require an error rate of 0%, we feel that this low

number illustrates that exam staff are careful and consistent when reviewing candidate

applications. Regardless, the DOJ has taken the following additional steps to ensure that

minimum qualifications are reviewed appropriately:

1. On July 1, 2019, the Testing and Selection Unit (TSU) hired an Exam Manager (Staff

Services Manager I) to directly supervise the exam staff; whereas previously they

reported to the TSU Manager (Staff Services Manager II). The new direct supervisor

would have fewer reports, and therefore, more time to dedicate to supervising and

directing the work of the exam staff, especially in the realm of MQs.

2. The TSU implemented manager review of all MQ rejections. This ensures that the Exam

Manager has oversight regarding a mandated, legal requirement. In addition, the Exam

Manager reviews all rejection letters, prior to them being released to the candidates, to

confirm they are receiving appropriate documentation and information.

3. Exam staff were provided with a list of resources, including links to relevant California

Government Codes and California Codes of Regulations, to aid them in performing

research into MQ evaluation questions.

4. Exam staff received additional MQ training facilitated by the DOJ Exam Manager on

February 20, 2020, or March 12, 2020. This training served as a reminder for those who

had already taken the selection analyst course, as well as preparation for those who had

not been formally trained yet. In addition, all new exam staff receive one-on-one training

regarding the interpretation of MQs.

5. Exam staff were reminded, both verbally and in writing, that candidate MQs are met by

the announced cut-off date or final filing date. The staff were also directed to take their

time and not rush when making calculations or decisions, especially with MQs. TSU

management reviewed the process of what happens when the department discovers an

unlawful appointment, to educate staff on the consequences for making these types of

mistakes.

Finding NO. 2 – Permanent Withhold Actions

No response is needed since the DOJ was found to be in compliance.

Finding NO. 3 - Unlawful Appointments

Cause: Library Technical Assistant I – The Compliance Review Unit (CRU) identified an

employee as potentially not meeting the minimum qualifications of the classification upon

examination. The MQ’s for this classification require either “Equivalent to completion of the

requirements for an Associate of Arts degree in Library Science,” or “Two years of increasingly

responsible sub professional library experience...” This employee held a bachelor’s degree (BA)

in History and later earned a Certificate of Achievement in Library Information Technology

from San Francisco City College (SFCC). At this college, students who already have a BA, as is

Attachment 1

the case of this employee, are put through the Certification program rather than the Associate

degree program for Library Information Technology, given that they have already completed the

general education requirement. Through an analysis of the number of units obtained and the

courses completed by the employee, the DOJ’s determination was that the candidate’s education

met the required equivalency of an Associate of Arts degree in Library Science. As CRU did not

agree with this determination and the DOJ was not given any further explanation, the DOJ

contacted SFCC for clarification. The Chair over the Library Information Technology

department confirmed that the employee had completed the equivalent education to an Associate

of Arts degree in Library Science. The Chair’s confirmation was provided to CRU; however, the

DOJ did not receive a response regarding whether this documentation could be accepted to

confirm the Library Technical Assistant I MQs. DOJ concludes this appointment to be lawful.

Response: Library Technical Assistant I – Because the DOJ deems this appointment to be lawful,

our response will address the issue of the investigation, rather than the MQs. The DOJ now

understands its responsibility to initiate unlawful investigations at the direction of a control

agency (i.e., California Department of Human Resources, State Personnel Board), regardless of

whether or not the alleged unlawful appointment has merit. Additional confusion was caused by

outdated templates for the unlawful appointment investigation process on the California

Department of Human Resources’ (CalHR) website. The outdated templates are no longer on the

website as of the writing of this report, but the new templates are still not linked. The DOJ plans

to create an unlawful appointment Standard Operating Procedure (SOP) to ensure there is no

confusion on this process moving forward, once the new templates are uploaded to the site.

Cause: Supervising Deputy Attorney General: The cause of this unlawful appointment was

addressed in Finding #1. The DOJ took appropriate action by noticing the employee of the

unlawful appointment and thereafter, terminating the appointment.

Response: Supervising Deputy Attorney General – See response to Finding #1 of this report.

Cause: Program Technician II/Office Technician: Upon the discovery of these unlawful

appointments, the DOJ was prepared to initiate the investigation process. However, CRU

notified the DOJ that the appointments would stand and there was no need to move forward with

any investigations. The DOJ recognizes that the Selection Manual states that MQs must be met

by the written test date when the test type includes a multiple-choice exam, as with the Program

Technician II and Office Technician tests. Through a Program Technician II appeal received on

July 9, 2019, and then later resolved October 17, 2019, TSU management reminded staff to

ensure they were researching written test dates in the Examination and Certification Online

System (ECOS) when making MQ determinations. This was captured in a memo submitted to

the Appeals Division dated December 12, 2019. However, the memo, and subsequent discussion

with staff, occurred later in October 2019, when the errors were made in June and July 2019,

respectively.

Response: Program Technician II/Office Technician – While it is unknown whether these

employees fully met the MQs by the time they tested, as no investigation was initiated, the DOJ

addressed the issue of reminding staff regarding when MQs for written tests must be met. This

reminder occurred on October 17, 2019, as mentioned in the cause above. TSU management

Attachment 1

reminded staff to ensure they were researching written test dates in ECOS and using that date to

determine when MQs must be met. This was captured in a memo submitted to the SPB’s

Appeals Division dated December 12, 2019. In addition, TSU has multiple SOPs for various

exam processes, and the process for reviewing MQs was updated October 17, 2019, and re-

distributed to staff to ensure the appropriate processes are followed. TSU management had

several discussions with staff regarding this issue to remind them to follow the correct process.

Please see the response regarding steps TSU has taken to address MQ issues in Finding #1.

Finding NO. 4 – Inappropriate Appointment by Way of Transfer

Cause: CRU identified that a Tax Technician I (TT I) was inappropriately transferred to the

Office Technician (Typing) (OT (T)) classification. According to voluntary transfer rules, these

two classifications do not have substantially the same level of duties or responsibilities, as TT I

is an entry-level classification, and OT (T) is an advanced journey level classification. The DOJ

understands transfer rules as outlined in recently revised CCR 428, 429, and 435 and conducts

transfer determinations manually through a two-page salary and transfer determination

worksheet, which are completed and reviewed. Unfortunately, this transfer was allowed due to

an administrative oversight.

Response: CRU audited 26 transfers conducted by the DOJ during the audit period, and 1 was

found to be inappropriately determined due to an administrative error. The DOJ, however,

recognizes the potential impact that these types of errors can lead to, including terminating

unlawful appointments. In an attempt to further minimize the risk of incorrect transfer

determinations, the DOJ has implemented a more thorough worksheet that will consist of four

pages and provides salary and transfer rules in detail. The DOJ will continue to stress to the

responsible staff, the importance of thoroughly evaluating and processing appointments.

Finding NO. 5 - Position(s) Were Improperly Filled by Training and Development

Assignments

Cause: Program Technician III T&D to Criminal Intelligence Specialist II – Three Program

Technician IIIs, were the most competitive candidates during the recruitment process and were

selected for Criminal Intelligence Specialist III (CIS III) positions. However, the candidates did

not meet the MQs for the CIS III classification. Since the CIS III classification is more than

three steps higher than the Program Technician III, the candidates were placed on a Training and

Development (T&D) assignment to the CIS II level. At the end of one year, the candidates

would have met the MQs for the CIS III level and thereafter, would have been appointed to the

CIS III level.

Response: The department considers California Code of Regulations (CCR) § 438 when placing

employees on T&D assignments. CCR § 438(b)(2)(B) states, “When the training and

development class is more than three steps higher than the employee's current class, the intent of

the training and development assignment is to prepare the employee for a permanent move to the

training and development class or to a closely related class, and the employee will meet

minimum qualifications for the higher salaried class by the conclusion of the training and

development assignment…”

Attachment 1

After further discussion and clarification from the SPB, the department has revised its policy to

only allow T&D assignments to classifications that have been advertised, even as a “may

consider” classification.

Finding NO. 6 – Probationary Evaluations Were Not Provided for All Appointments

Reviewed and Those That Were Reviewed Were Untimely

Cause: DOJ’s practice requires supervisors to not only provide probationary reports to

employees on a timely basis, but also to ensure the original signed report is forwarded to the

Office of Human Resources (OHR) for placement into the employee's Official Personnel File

(OPF). This is a highly manual process and the cause for missing evaluations is due to

constraints on being able to follow up in a timely and more frequent basis with supervisors.

Response: The DOJ has implemented an automated solution for tracking probationary reports

through SharePoint. By tracking the reports via SharePoint, we are able to identify employees

who have missing probationary reports, prompting us to reach out to the supervisor/manager and

remind them to submit the report. Although this was the second time the DOJ had a finding in

this area, we have shown significant improvement in this area. In the previous audit, we were

missing 30 probationary reports, whereas this time, we are only missing 12. The automated

tracking process mentioned above will ensure staff are effectively contacted for timely

evaluations.

Finding NO. 7 – Appointment Documentation Was Not Kept for the Appropriate

Amount of Time

Cause: This is a highly manual process, which leaves us susceptible to human error. In many

cases, we received unsigned copies or failed to receive the signed copies back from the

employees.

Response: We have implemented a tracking process to assist us in ensuring that we receive the

NOPAs back from employees. Although this was the second time the DOJ had a finding, we

have shown significant improvements in this area. In the previous audit, we were missing 21

NOPAs out of 144 appointments, whereas this time, we are only missing 5 out of 204

appointments. The tracking process mentioned above will allow us to effectively monitor the

appointment documents..

Finding NO. 8 – Equal Employment Opportunity Program Complied with All Civil Service

Laws and Board Rules


Finding NO. 9 – Unions Were Not Notified of Personal Services Contracts

Cause: The union notifications were being filtered and sent by a manager to the unions for

consistency. Unfortunately, the notifications were not saved to a shared file, which may have

inhibited our ability to provide all of the union notifications to SPB during the audit process.

Attachment 1

Response: SPB’s Compliance Review Report identified 14 contracts that were executed by the

Contracting and Purchasing Unit that were missing union notification. The DOJ was able to

gather 12 of the 14 union notifications for these contracts. Attached is a spreadsheet that

identifies the union notification (checkmark on the 215 or by email). After the initial phase of

this audit, the DOJ instituted a new process in which the union notification is to be printed and

added to the contract file. We continue searching for the above-mentioned missing notifications.

Finding NO. 10 - Leadership and Development Training Was Not Provided for

All Supervisors, Managers, and CEAs.

Cause: 21 of the 43 supervisors deemed out of compliance completed the Basic Supervision

training requirements within the timeframe given by the DOJ. The issue stemmed from

interpretation of the training requirement that all new supervisors take the in-class portion within

the first 6 months of their employment. The DOJ allowed for another 6 months to complete the

On-the-Job Training (OJT) portion, for a total of 80 hours within 12 months of their appointment

date. Per Office of Professional Development (OPD) policy, once a student finished their in-class

Basic Supervision training, OPD sent an email to each student in the class with information for

the OJT phase. From the date of the email, OPD gave the participants six months to complete the

32 hours of OJT. The student’s date of appointment was not considered when the emails were

sent regarding the OJT deadline.

CalHR did not offer the Manager Development Program until 2019. For the 8 managers deemed

out of compliance, 3 of them took leadership classes to meet the mandate despite CalHR’s

program being unavailable. CalHR has not developed the Executive Development Program for

the 2 CEAs deemed out of compliance, and 1 of the 2 CEAs took 48 hours of Basic Supervision

to cover the 20 hours of required CEA training. For the 5 biennial leadership trainings in

question, 2 of 5 completed 18 hours before retiring in December 2019, and 1 completed 9.65

hours before separating in November 2019.

Response: DOJAM Section 18174 is being revised to correct the policy regarding completion of

the mandated training requirements. DOJ is working to procure a Learning Management System

as part of the JusticeHR project that was approved in April 2016 with projected completion in

2021. The DOJ has also implemented monthly communication to all new supervisors and

training coordinators based on the appointments and separations report in order to communicate

the mandated training timeframe requirements to improve future audit results. The DOJ has

established a memorandum of understanding (MOU) in 2020 with CalHR to bring the Supervisor

Development Program back to the DOJ in order to provide better access and availability for DOJ

supervisors who are in need of the mandated training.

Finding NO. 11 – Ethics Training Was Not Provided for All Filers

Cause: All filers were provided a notice with information and instructions for the ethics training.

The cause for this finding is either failure on the part of the employee to take the course or

forward a completion certificate to the ethics training Filing Officer.

Response: The DOJ agrees with the need to ensure that designated filers are aware of

prohibitions related to their official position and influence. All non-compliant employees have

Attachment 1

been notified to complete the online ethics course and/or forward a copy of the completion

certificate to the ethics training Filing Officer immediately. To further increase compliance with

GC section 1114.3(b), the DOJ will increase monitoring of designated filers for completion of

ethics training, and shorten the period prior to escalation to the filer's management. Monthly

notices will be sent to each Division Director and Administrative Manager to inform them of any

filer who is due to complete the training.

Finding NO. 12 – Sexual Harassment Prevention Training Was Not Provided for All

Supervisors

Cause: SHP training is mandatory training per the DOJ policy, and the DOJ notifies all

employees that they are required to attend. Despite notification, workload, scheduling constraints

and various other reasons sometimes did not allow supervisors to attend SHP training within the

specified timeframe. SHP training was a component of the DOJ’s former Basic Supervision

Training (BST). It may be that some new supervisors delayed attending SHP training, instead

waiting to attend BST rather than attend SHP training twice. Additionally, during the period of

2017-2018, 56 employees were placed on the BST waitlist. Some employees waited six to ten

months for the next available training session.

Response: Of the 21 new supervisors, 14 (66%) completed SHP training within the three months

following the six-month deadline. Of the 306 existing supervisors noted on the report, 127

employees (41.5%) completed their mandatory training within two months of the two-year

deadline. The DOJ strives to ensure compliance with SHP training mandates. During the audit

examination period of August 1, 2017, to July 30, 2019, the DOJ offered 125 SHP training

sessions. The DOJ also offers interactive webinar SHP training sessions to allow employees from

across the state to attend without travel. The Equal Employment Rights and Resolution

(EER&R) Office currently tracks SHP training dates for all employees on a monthly basis. The

EER&R Office provides each DOJ division training coordinator with monthly lists of existing

and newly appointed supervisors/managers showing their current training date/next training due

date and a list of upcoming Discrimination, Harassment, and Retaliation Prevention Training

dates. The EER&R Office is currently working to develop a system to send automated emails at

specified intervals to each employee in the department that is due for SHP training. The email

will notify the employee of when they are due for training and provide an intranet link to a list of

upcoming training dates.

Finding NO. 13 – Incorrect Application of Salary Determination Laws, Rules, and CalHR

Policies and Guidelines for Appointment

Cause: Business Services Officer II (Supervisory) – CRU identified that an employee was

appointed with an incorrect salary amount, as he should have received a 5% increase upon

promotion.

Response: The movement from Business Service Officer I to Business Service Officer II is

subject to regulation 599.674 (b), which allows our department to provide a one-step (5%)

increase. A review of this action shows that we correctly applied a one-step increase, but to the

incorrect “current salary”. The DOJ identified and corrected this salary rate on February 4, 2020.

The employee has since received the appropriate salary amount for his promotion.

Attachment 1

The DOJ is aware of salary rules and the importance of correctly calculating salary

determinations for each individual. While the DOJ strives to ensure minimal errors in manually

processing and evaluating each individual case, there is still a chance of human error. In an

attempt to further minimize the risk of incorrect salary determinations, the DOJ is implementing

a more thorough worksheet that will consist of four pages and provide salary and transfer rules in

detail. The DOJ will continue to stress the importance of thoroughly evaluating and processing

salary determinations.

Cause: Criminal Identification Specialist I; Deputy Attorneys General V – CRU identified that

the DOJ appointed these employees to the maximum salary rate of their respective

classifications, citing PML 2007-026. These salary adjustments were transacted through SAL

increases, pursuant to the PML.

Response: Criminal Identification Specialist I; Deputy Attorneys General V – PML 2007-026

established that departments were given authority to approve movement to the maximum of the

salary range when the salary is $25.00 or less from the maximum rate. In 2008, the DOJ

consulted with the Personnel Services Branch at the Department of Personnel Administration

(DPA (now CalHR)) regarding this policy and its intent. Per DPA’s Barbara Hudson, this

authority was intended to apply to promotion transactions as well. After being provided this

clarification and direction, DOJ has continued to exercise its authority in this manner.

Most recently in our compliance review report, DOJ was faulted for following direction that was

previously given to the department by a control agency. Based on these findings, it appears

CalHR and SPB’s stance has changed and that we should no longer allow movement to the

maximum of the salary range if it is within $25.00 for promotions. We recommend CalHR and

SPB to clarify the appropriate action.

Cause: Criminal Identification Specialist III – CRU identified that an individual’s Merit Salary

Adjustment (MSA) date was manually keyed as June 2019; however, it should have reflected

July 2019 since June 2019 was not a qualifying pay period (i.e., 11 days).

Response: The DOJ identified and corrected the MSA date on February 4, 2020, prior to the

MSA issuing. The employee received the correct MSA pay in July 2019. The DOJ is aware of

salary rules and the importance of correctly calculating MSAs for each individual. While the

DOJ strives to ensure that there are minimal errors in manually processing and evaluating each

individual case, there is still a chance of human error.

Finding NO. 14 – Exceptions to the Salary Rules Complied with Civil Service Laws, Board

Rules, and CalHR Policies and Guidelines


Finding NO. 15 – Alternate Range Movements Did Not Comply with Civil Service Laws,

Board Rules, and/or CalHR Policies and Guidelines

Attachment 1

Cause: Staff Services Analyst – CRU identified that an individual was keyed as an SSA, range A

effective June 20, 2019. A range change was also keyed with an effective date of June 24, 2019,

to SSA, range B. CRU identified that this individual should have received the range change on

the same day she was appointed, and therefore, was underpaid. Upon investigating this matter,

the DOJ found that a keying error was made when transacting this appointment.

Response: The DOJ identified and corrected this keying error on February 4, 2020, to adjust the

range change to SSA, range B, with an effective date of June 20, 2019. The employee has since

received the appropriate salary amount for her range change. The DOJ is aware of alternate range

change rules and the importance of correctly calculating determinations and transacting them

correctly for each individual. While the DOJ strives to ensure that there are minimal errors in

manually processing and evaluating each individual case, there is still a chance of human error.

The DOJ will continue to stress to the responsible staff the importance of thoroughly evaluating

and processing transactions.

Cause: Legal Secretary and Senior Legal Typist – HAM plus salary was combined with the base

salary. Therefore, the CRU was unable to determine if the DOJ computed the salary correctly

pursuant to CalHR Pay Scales, section 5: Hire-Above-Minimum Authorization, General

Instructions (A) and (I).

Response: Legal Secretary and Senior Legal Typist – CRU can determine that these employees

were compensated correctly. Both alternate ranges for the Legal Secretary and Senior Legal

Typist classifications are approved by CalHR for HAM salary rates. It is true that our

departmental practice of combining the base and plus salary is different than the transactional

instructions provided in Pay Scales section 5. It is our view that the plus salary transactional

methodology was established to avoid situations where an employee who promotes or transfers

out of a HAM rate approved classification to a classification not approved for a HAM rate does

not erroneously take the plus salary with them. However, because the entire promotional path of

this legal secretary classification series are approved for HAM salary rates, this risk does not

exist. Therefore, to minimize transactional errors, our department reflects the total HAM

approved rate in the base salary. CRU can compare the pay that issued after these range changes

were conducted to the compensation rate authorized by CalHR and find that the employees were

paid correctly.

Finding NO. 16 - Incorrect Authorization of Hiring Above Minimum Requests

Cause: The Legal Support Supervisor series is identified and referenced in Pay Differential 141

as an eligible classification and has historically received the Section 5 HAM rate. The DOJ

consistently applies Pay Scale Section 5, HAM Authorization to the Legal Support Supervisor

Series based on its original intent. The DOJ believes this section was updated and the Legal

Support Supervisor classification was inadvertently omitted upon revision. The DOJ submitted a

request to CalHR to correct the current omission of the Legal Support series to Pay Scale Section

5, as this is the supervisory class over the Senior Legal Typist and Legal Secretary

classifications, and is included in Pay Differential 141. The DOJ advised that documentation is

not included for this process as it is an application of a Pay Scale; however, salary determination

should cite Section 5 HAM as authorization in comments.

Attachment 1

Response: The department has identified the Pay Scale Section 5 modification request as priority

1 in hopes that CalHR will correct it as soon as possible.

Finding NO. 17 – Red Circle Rate Authorizations Complied with Civil Service Laws, Board

Rules, and CalHR Policies and Guidelines


Finding NO. 18 – Arduous Pay Authorization Complied with Civil Service Laws, Board



Finding NO. 19 – Bilingual Pay Authorization Complied with Civil Service Laws, Board



Finding NO. 20 – Incorrect Authorization of Pay Differentials

Cause: Through an internal departmental audit, we discovered a Senior Criminalist was entitled

to receive Pay Differential 209 effective May 31, 2016, one year earlier than was previously

reported.

Response: We are in the process of working with the State Controller’s Office to issue the back

pay that is due to the Senior Criminalist.

The department recently provided training to internal and external human resources staff on the

determination and processing of Pay Differential 209 to avoid such situations.

Finding No. 21 – Incorrect Authorization of Out-of-Class Pay

Cause: Deputy Attorney General III – CRU identified that the DOJ did not provide the

appropriate amount of out-of-class (OOC) pay for this individual, and therefore, the individual

was underpaid. This individual received a promotion in place that was effective the same date as

the OOC assignment. The promotion in place was retroactive and keyed in late May 2019;

therefore, the difference in salary for the OOC rate identified at the forefront.

Response: Deputy Attorney General III – The DOJ is adjusting this employee’s OOC salary rate

to ensure that the employee receives the appropriate difference in salary for the time she was on

an OOC assignment. The DOJ is aware of salary rules and the importance of correctly

calculating salary determinations for each individual. While the DOJ strives to ensure that there

are minimal errors in processing and evaluating each individual case, there is still a chance of

human error. The DOJ will continue to require multiple levels of review for all salary

determinations and stress the importance of careful and thorough reviews.

Cause: Senior Criminalist – Employee was undercompensated for the February 2019 pay period.

The OOC was over 120 days and switched from earnings ID 8G to SI per pay differential 92.

120 days at 8G pay, October 15, 2018-February 11, 2019. SI payment starts on 121st day,

February 12, 2019. Underpayments were as follows:

Attachment 1

Pay Type/Days Amount Paid Amount to be Paid Difference

8G - 8 $ 169.20 $ 155.04 $ 14.16

SI - 13 210.80 251.95 (41.15)

Total $ 380.00 $ 406.99 $ (26.99)

Response: Senior Criminalist – We agree that the employee was undercompensated. A STD. 674

has been sent to SCO to produce the pay adjustment.

Cause: Special Agent-in-Charge – This managerial employee was placed on a paid emergency

acting assignment for 60 working days, and subsequently, placed on an OOC assignment with

pay after the 91st day of his acting assignment.

Response: Special Agent-in-Charge - Pursuant to CCR Title 2 § 302.3. Acting Assignments, a

department is able to make an emergency appointment on an acting basis to established positions

for 20 to 60 working days when the Department determines that:

(a) Such appointments are needed to meet a specifically identified and reasonable operating

need; and

(b) The identified need could not have been feasibly met through use of other civil service or

administrative alternatives; and

(c) When a state employee is to be appointed, that such employee cannot effectively meet the

identified need without a substantial change in duties that would clearly result in the employee

working outside the scope of his/her current classification. Reassignments that do not

substantially change the overall nature of an employee's work assignment shall not be a basis for

an emergency appointment under this section.

The duties assigned to this individual were substantially different than his typically-assigned

duties at his lower level classification, and there was an immediate need to continue the duties of

this position. Therefore, the DOJ appointed this individual to an acting assignment in order to

appropriately address operational needs pursuant to CCR Title 2 § 302.3. The OOC assignment

that followed the acting assignment was appropriately compensated, as the OOC pay was issued

after the 91st day of his assuming the duties, pursuant to pay differential 101. The DOJ is not

aware of any rules or regulations that prohibit the use of an emergency acting assignment prior to

an OOC assignment. Furthermore, DOJ received prior direction from CalHR’s Debbie Baldwin,

Manager in the Personnel Management Division, in 2015 that an acting assignment prior to an

OOC assignment was appropriate. After being provided this clarification and direction, DOJ has

continued to exercise its authority in this manner.

Most recently in our compliance review report, DOJ was faulted for following direction that was

previously given to the department by a control agency. Based on these findings, it appears

CalHR and SPB’s stance has changed and that we should no longer allow acting assignments

prior to OOC assignments. Please clarify which direction DOJ should be following.

Finding NO. 22 – Positive Paid Employees Exceeded the Nine-Month Limitation in Any

Twelve Consecutive Month Period

Attachment 1

Cause: The DOJ was tracking the 1500-hour working limitation for temporary intermittent

employees in the same manner as permanent intermittent employees, via a January through

December calendar year, instead of tracking their 1500-hour working limitation based on their

start date. Since this error has occurred, we had 9 employees who worked over the 1500 hours

during this audit period.

Response: The DOJ will implement an automated intermittent tracking card to track the hours

worked based on the employee’s hire date, so that we do not have intermittent employees

working over the 1500-hour limitation.

Finding NO. 23 – Administrative Time Off Was Not Properly Documented

Cause: The DOJ did not grant ATO in conformity with the established policies and procedures.

Of the 43 ATO authorizations reviewed by the CRU, 7 were found to be out of compliance for

failing to document justification for ATO.

Response: We disagree with these findings. We have provided the specific justification for this

ATO time. As shown below, the affected employee timesheets clearly document the activities.

These employees either served on an Election Board or were allowed ATO time off to vote. This

is a delegated authority provided by CalHR Online Manual Section 2121 that provides that

Departments have discretion as to whether any verification of Election Board service is required,

“Departments may (emphasis added) require employees to provide verification of service from

the Registrar of Voters, including the name of the employee serving and the date of the election.”

For the employees identified below, some of the supervisors enacted this discretion and some did

not. Neither case would be a violation of our delegated authority.

The Voting on Election Day provision in Section 2121 does not identify any documentation

requirement

Legal Secretary Election Board

Did not provide specific justification for ATO

use

Supervising Librarian I Election Board


use



use



use

Legal Analyst Election Board


use

Senior Legal Analyst Voting


use

Attachment 1

Cause:

Staff Services Analyst (General) Unknown


use

Response: We agree with this finding. Our records did not produce the precise circumstances

under which this ATO was granted.

Finding NO. 24 – Department Has Not Implemented a Monthly Internal Audit Process to

Verify All Leave Input Is Keyed Accurately and Timely.

Cause: The DOJ failed to implement a monthly internal audit process to verify all timesheets

were keyed accurately and timely. Specifically, the DOJ failed to retain one timesheet in the

March 2019 pay period and incorrectly keyed one timesheet, which resulted in one hour of

overpayment in the March 2019 pay period. Additionally, during the March 2019 pay period, the

DOJ failed to complete the Leave Activity and Certification form timely for one unit reviewed.

Timesheets and/or leave certifications with errors were due to entries keyed in late or

inaccurately, or unavailable.

Response: The DOJ has implemented an electronic timesheet for all DOJ employees to use,

which incorporates the digital signature function, allowing employees to submit electronically.

We have also implemented an excel spreadsheet for each Personnel Specialist to track missing

and/or late timesheets and leave certifications. The Personnel Specialist will track and escalate to

management if there are any late or missing timesheets or leave certifications. Lastly, the DOJ is

in the process of procuring a time and attendance system via the JusticeHR project, which is

expected to be implemented in 2021.

Finding NO. 25 – Leave Reduction Plans Complied with Civil Service Laws, Board Rules,

and CalHR Policies and Guidelines


Finding NO. 26 – Service and Leave Transaction Complied with Civil Service Laws, Board



Finding NO. 27 – Nepotism Policy Complied with Civil Service Laws, Board Rules, and/or

CalHR Policies and Guidelines


Finding NO. 28 – Workers’ Compensation Process Complied with Civil Service Laws,

Board Rules, and/or CalHR Policies and Guidelines

Attachment 1


Finding NO. 29 – Performance Appraisals Were Not Provided to All Employees

Cause: The DOJ did not provide annual performance appraisals to 88 of the 115 employees

reviewed after the completion of the employee’s probationary period. It is incumbent upon the

employees supervisors and managers to not only provide the performance appraisals on a timely

basis to the employees, but also to ensure the original signed report is forwarded to the OHR for

placement into the employee's OPF This is a manual process and the cause for missing

performance appraisals is due to constraints on being able to follow up in a timely and more

frequent basis with supervisors and managers.

Response: The DOJ strives to ensure all supervisors and managers are aware of the requirement

to complete performance appraisals annually for their employees. The CRU finding states the

DOJ did not provide appraisals to 88 of the 115 employees reviewed. In fact, it was 19 of the 115

employees that did not receive performance appraisals. Regrettably, 69 of the employees

reviewed received their annual performance appraisal untimely. The DOJ is in the process of

updating its policies and developing a standardized process to ensure managers and supervisors

complete performance appraisals timely for their employees on an annual basis, which will

include a tracking system.

The DOJ would like to thank the CRU Team for providing us the opportunity to respond to this

report. If you have any questions or need additional information regarding this audit response,

you may contact me at (916) 210-6244.

Sincerely,

CHRISTINE ALLISON, Director

Office of Human Resources

Division of Operations

Office of the Attorney General - Sacramento

For XAVIER BECERRA

Attorney General

cc: Chris Ryan, Chief, Division of Operations

Attachment 1

DEPARTMENT OF JUSTICEPursuant to Government Code section 18661, the SPB’s Compliance Review Unit...

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