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COMPLIANCE REVIEW REPORTDEPARTMENT OF CONSUMER AFFAIRSCompliance Review UnitState Personnel BoardMay 14, 2020
TABLE OF CONTENTSIntroduction . 1Executive Summary . 2Background . 4Scope and Methodology . 4Findings and Recommendations . 6Examinations . 6Permanent Withhold Actions . 8Appointments . 9Unlawful Appointment Investigations . 14Equal Employment Opportunity . 15Personal Services Contracts . 15Mandated Training . 18Compensation and Pay . 22Leave . 37Policy and Processes . 50Departmental Response . 53SPB Reply. 54
INTRODUCTIONEstablished by the California Constitution, the State Personnel Board (the SPB orBoard) is charged with enforcing and administering the civil service statutes, prescribingprobationary periods and classifications, adopting regulations, and reviewingdisciplinary actions and merit-related appeals. The SPB oversees the merit-basedrecruitment and selection process for the hiring of over 200,000 state employees. Theseemployees provide critical services to the people of California, including but not limitedto, protecting life and property, managing emergency operations, providing education,promoting the public health, and preserving the environment. The SPB providesdirection to departments through the Board’s decisions, rules, policies, andconsultation.Pursuant to Government Code section 18661, the SPB’s Compliance Review Unit(CRU) conducts compliance reviews of appointing authorities’ personnel practices infive areas: examinations, appointments, equal employment opportunity (EEO),personal services contracts (PSC’s), and mandated training, to ensure compliance withcivil service laws and Board regulations. The purpose of these reviews is to ensurestate agencies are in compliance with merit related laws, rules, and policies and toidentify and share best practices identified during the reviews.Pursuant to Government Code section 18502, subdivision (c), the SPB and theCalifornia Department of Human Resources (CalHR) may “delegate, share, or transferbetween them responsibilities for programs within their respective jurisdictions pursuantto an agreement.” SPB and CalHR, by mutual agreement, expanded the scope ofprogram areas to be audited to include more operational practices that have beendelegated to departments and for which CalHR provides policy direction. Many of thesedelegated practices are cost drivers to the state and were not being monitored on astatewide basis.As such, SPB also conducts compliance reviews of appointing authorities’ personnelpractices to ensure that state departments are appropriately managing the followingnon-merit-related personnel functions: compensation and pay, leave, and policy andprocesses. These reviews will help to avoid and prevent potential costly litigation relatedto 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 orwhen the SPB obtains information suggesting a potential merit-related violation.1SPB Compliance ReviewDepartment of Consumer Affairs
It should be noted that this report only contains findings from this hiring authority’scompliance review. Other issues found in SPB appeals and special investigations aswell as audit and review findings by other agencies such as the CalHR and theCalifornia State Auditor are reported elsewhere.EXECUTIVE SUMMARYThe CRU conducted a routine compliance review of the Department of ConsumerAffairs (DCA) 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 ppointmentsEqual EmploymentOpportunityFindingExaminations Complied with Civil Service Laws andBoard RulesPermanent Withhold Actions Complied with Civil ServiceLaws and Board RulesProbationary Evaluations Were Not Provided for AllAppointments Reviewed and Were Not TimelyUnlawful Appointment Investigation Complied with CivilService Laws, Board Rules, and CalHR Policies andGuidelinesEqual Employment Opportunity Program Complied withAll Civil Service Laws and Board RulesPersonal ServicesContractsUnions Were Not Notified of Personal Services ContractMandated TrainingEthics Training Was Not Provided for All FilersMandated TrainingSupervisory Training Was Not Provided for AllSupervisors, Managers, and CEAsMandated TrainingSexual Harassment Prevention Training Was NotProvided for All SupervisorsCompensation and PayCompensation and Pay2Salary Determinations Complied with Civil Service Laws,Board Rules, and CalHR Policies and GuidelinesAlternate Range Movements Did Not Comply with CivilService Laws, Board Rules, and/or CalHR Policies andGuidelinesSPB Compliance ReviewDepartment of Consumer Affairs
AreaCompensation and PayCompensation and PayCompensation and PayCompensation and PayCompensation and ingHire Above Minimum Requests Complied with CivilService Laws, Board Rules, and/or CalHR Policies andGuidelinesIncorrect Application of Laws, Rules, and CalHR Policiesand Guidelines for Red Circle Rate PayIncorrect Authorization of Bilingual PayPay Differential Authorizations Complied with CivilService Laws, Board Rules, and CalHR Policies andGuidelinesOut of Class Pay Authorizations Complied with CivilService Laws, Board Rules, and CalHR Policies andGuidelinesDepartment Did Not Properly Monitor Time Worked forAll Positive Paid EmployeesAdministrative Time Off Authorizations Complied withCivil Service Laws, Board Rules, and/or CalHR Policiesand GuidelinesLeave Activity and Correction Certification Forms WereNot Completed For All Leave Records ReviewedLeave Reduction Plans Were Not Developed forEmployees Whose Leave Balances ExceededEstablished LimitsIncorrect Application of State Service and LeaveTransactionsNepotism Policy Complied with Civil Service Laws, BoardRules, and/or CalHR Policies and GuidelinesWorkers’ Compensation Process Complied withCivil Service Laws, Board Rules, and/or CalHR Policiesand GuidelinesPerformance Appraisals Were Not Provided to AllEmployeesA color-coded system is used to identify the severity of the violations as follows: 3Red Very SeriousOrange SeriousYellow Non-serious or TechnicalGreen In ComplianceSPB Compliance ReviewDepartment of Consumer Affairs
BACKGROUNDThe DCA protects California consumers by providing a safe and fair marketplacethrough oversight, enforcement, and licensure. The DCA consists of 37 boards andbureaus which regulate over 3.9 million licenses in more than 250 various professionsand occupations. The DCA’s regulatory boards and bureaus protect, educate, andempower California consumers by investigating complaints and disciplining licenseholders who violate practice requirements. The DCA employs approximately 4,161employees department-wide and has approximately 100 field offices throughout thestate of California.SCOPE AND METHODOLOGYThe scope of the compliance review was limited to reviewing the DCA’s examinations,appointments, EEO program, PSC’s, mandated training, compensation and pay, leave,and policy and processes1. The primary objective of the review was to determine if theDCA personnel practices, policies, and procedures complied with state civil servicelaws and Board regulations, Bargaining Unit Agreements, CalHR policies andguidelines, CalHR Delegation Agreements, and to recommend corrective action wheredeficiencies were identified.A cross-section of the DCA’s examinations were selected for review to ensure thatsamples of various examination types, classifications, and levels were reviewed. TheCRU examined the documentation that the DCA provided, which included examinationplans, examination bulletins, job analyses, and scoring results. The CRU also reviewedthe DCA’s permanent withhold actions documentation, including WithholdDetermination Worksheets, State applications (STD 678), class specifications, andwithhold letters.A cross-section of the DCA’s appointments were selected for review to ensure thatsamples of various appointment types, classifications, and levels were reviewed. TheCRU examined the documentation that the DCA provided, which included Notice ofPersonnel Action (NOPA) forms, Request for Personnel Actions (RPA’s), vacancypostings, certification lists, transfer movement worksheets, employment historyrecords, correspondence, and probation reports. The CRU also reviewed the DCA’spolicies and procedures concerning unlawful appointments to ensure departmentalpractices conform to state civil service laws and Board regulations.1Timeframes of the compliance review varied depending on the area of review. Please refer to eachsection for specific compliance review timeframes.4SPB Compliance ReviewDepartment of Consumer Affairs
The DCA’s appointments were also selected for review to ensure the DCA appliedsalary regulations accurately and correctly processed employees’ compensation andpay. The CRU examined the documentation that the DCA provided, which includedemployees’ employment and pay history and any other relevant documentation suchas certifications, degrees, and/or the appointee’s application. Additionally, the CRUreviewed specific documentation for the following personnel functions related tocompensation and pay: hiring above minimum (HAM) requests, red circle rate requests,bilingual pay, monthly pay differentials, alternate range movements, and out-of-classassignments. During the compliance review period, the DCA did not issue or authorizearduous payThe review of the DCA’s EEO program included examining written EEO policies andprocedures; the EEO Officer’s role, duties, and reporting relationship; the internaldiscrimination complaint process; the reasonable accommodation program; thediscrimination complaint process; and the Disability Advisory Committee (DAC).The DCA’s PSC’s were also reviewed.2 It was beyond the scope of the compliancereview to make conclusions as to whether the DCA’s justifications for the contracts werelegally sufficient. The review was limited to whether the DCA’s practices, policies, andprocedures relative to PSC’s complied with procedural requirements.The DCA’s mandated training program was reviewed to ensure all employees requiredto file statements of economic interest were provided ethics training, and that allsupervisors, managers, and Career Executive Assignments (CEAs) were providedleadership and development training and sexual harassment prevention training withinstatutory timelines.The CRU also identified the DCA’s employees whose current annual leave, or vacationleave credits, exceeded established limits. The CRU reviewed a cross-section of theseidentified employees to ensure that employees who have significant “over-the-cap”leave balances have a leave reduction plan in place. Additionally, the CRU asked theDCA to provide a copy of their leave reduction policy.2Ifan employee organization requests the SPB to review any personal services contract during the SPBcompliance review period or prior to the completion of the final compliance review report, the SPB willnot audit the contract. Instead, the SPB will review the contract pursuant to its statutory and regulatoryprocess. In this instance, none of the reviewed PSC’s were challenged.5SPB Compliance ReviewDepartment of Consumer Affairs
The CRU reviewed the DCA’s Leave Activity and Correction Certification forms to verifythat the DCA created a monthly internal audit process to verify all leave input into anyleave accounting system was keyed accurately and timely. The CRU selected a smallcross-section of the DCA’s units in order to ensure they maintained accurate and timelyleave accounting records. Part of this review also examined a cross-section of theDCA’s employees’ employment and pay history, state service records, and leaveaccrual histories to ensure employees with non-qualifying pay periods did not receivevacation/sick leave and/or annual leave accruals or state service credit. Additionally,the CRU reviewed a selection of the DCA employees who used Administrative TimeOff (ATO) in order to ensure that ATO was appropriately administered. Further, theCRU reviewed a selection of DCA positive paid employees whose hours are trackedduring the compliance review period in order to ensure that they adhered to proceduralrequirements.Moreover, the CRU reviewed the DCA’s policies and processes concerning nepotism,workers’ compensation, and performance appraisals. The review was limited towhether the DCA’s policies and processes adhered to procedural requirements.On April 7, 2020, an exit conference was held with the DCA to explain and discuss theCRU’s initial findings and recommendations. The CRU received and carefully reviewedthe DCA’s written response on April 28, 2020, which is attached to this final compliancereview report.FINDINGS AND RECOMMENDATIONSExaminationsExaminations to establish an eligible list must be competitive and of such character asfairly to test and determine the qualifications, fitness, and ability of competitors toperform 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, orin the form of a demonstration of skills, or any combination of those tests. (Ibid.) TheBoard establishes minimum qualifications for determining the fitness and qualificationsof 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 theexamination, the designated appointing power shall announce or advertise theexamination for the establishment of eligible lists. (Gov. Code, § 18933, subd. (a).) Theadvertisement shall contain such information as the date and place of the examinationand the nature of the minimum qualifications. (Ibid.) Every applicant for examinationshall file an application with the department or a designated appointing power as6SPB Compliance ReviewDepartment of Consumer Affairs
directed by the examination announcement. (Gov. Code, § 18934, subd. (a)(1).) Thefinal earned rating of each person competing in any examination is to be determined bythe 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 theexamination when the employment list resulting from the examination is established.(Gov. Code, § 18938.5.)During the period under review, March 1, 2019, through August 31, 2019, the DCAconducted 31 examinations. The CRU reviewed six of those examinations, which arelisted below:ClassificationCEA A, Chief ofEnforcement forMedical Board ofCaliforniaEnforcementRepresentative I,Contractors StateLicense Board (NonPeace Officer)EnforcementRepresentative II,Contractors StateLicense Board (CSLB)EnforcementRepresentative II, CSLBExam TypeExam ComponentsFinal FileDateNo. ofAppsCEAStatement ofQualifications(SOQ) tionalEducation andExperience 5Continuous14DepartmentalPromotionalTraining andExperience6Continuous133 In a Statement of Qualifications examination, applicants submit a written summary of their qualificationsand experience related to a published list of desired qualifications. Raters, typically subject matterexperts, evaluate the responses according to a predetermined rating scale designed to assess theirability to perform in a job classification, assign scores and rank the competitors in a list.4 A written examination is a testing procedure in which candidates’ job-related knowledge and skills areassessed through the use of a variety of item formats. Written examinations are either objectively scoredor subjectively scored.5 In an Education and Experience examination, one or more raters reviews the applicants’ Standard 678application forms, and scores and ranks them according to a predetermined rating scale that may includeyears of relevant higher education, professional licenses or certifications, and/or years of relevant workexperience.6 The Training and Experience examination is administered either online or in writing, and asks theapplicant to answer multiple-choice questions about his or her level of training and/or experienceperforming certain tasks typically performed by those in this classification. Responses yield point values.7SPB Compliance ReviewDepartment of Consumer Affairs
Exam TypeExam ComponentsFinal FileDateNo. ofAppsExaminer In BarberingOpenSOQContinuous19Supervising NursingEducation ConsultantOpenEducation andExperienceContinuous2ClassificationFINDING NO. 1 – Examinations Complied with Civil Service Laws and BoardRulesThe CRU reviewed two departmental promotional and four open examinations whichthe DCA administered in order to create eligible lists from which to make appointments.The DCA published and distributed examination bulletins containing the requiredinformation for all examinations. Applications received by the DCA were accepted priorto the final filing date. Applicants were notified about the next phase of the examinationprocess. After all phases of the examination process were completed, the score of eachcompetitor was computed, and a list of eligible candidates was established. Theexamination results listed the names of all successful competitors arranged in order ofthe score received by rank. The CRU found no deficiencies in the examinations that theDCA conducted during the compliance review period.Permanent Withhold ActionsDepartments are granted statutory authority to permit withhold of eligibles from listsbased on specified criteria. (Gov. Code, § 18935.) Permanent appointments andpromotions within the state civil service system shall be merit-based, ascertained by acompetitive examination process. (Cal. Const., art. VII, § 1, subd. (b).) If a candidatefor appointment is found not to satisfy the minimum qualifications, the appointing powershall provide written notice to the candidate, specifying which qualification(s) are notsatisfied and the reason(s) why. The candidate shall have an opportunity to establishthat s/he meets the qualifications. (Cal. Code Regs., tit. 2, § 249.4, subd. (b).) If thecandidate fails to respond, or fails to establish that s/he meets the minimumqualification(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.) Theappointing authority shall promptly notify the candidate in writing, and shall notify thecandidate of his or her appeal rights. (Ibid.) A permanent withhold does not necessarilypermanently restrict a candidate from retaking the examination for the sameclassification in the future; however, the appointing authority may place a withhold onthe candidate’s subsequent eligibility record if the candidate still does not meet theminimum qualifications or continues to be unsuitable. (HR Manual, Section 1105). State8SPB Compliance ReviewDepartment of Consumer Affairs
agency human resources offices are required to maintain specific withholddocumentation for a period of five years. (Ibid.)During the period under review, March 1, 2019, through August 31, 2019, the DCAconducted eight permanent withhold actions. The CRU reviewed four of thesepermanent withhold actions, which are listed below:Exam TitleAccounting Officer(Specialist)Associate GovernmentProgram AnalystManagement ServicesTechnicianSpecial InvestigatorExam IDDateDate ListListEligibilityEligibilityBeganEnded4PB4101 4/191PB034/10/198/8/19Reason CandidatePlaced on WithholdFailed to Meet MinimumQualificationsFailed to Meet MinimumQualificationsFailed to Meet MinimumQualificationsFailed to Meet MinimumQualificationsFINDING NO. 2 – Permanent Withhold Actions Complied with Civil ServiceLaws and Board RulesThe CRU found no deficiencies in the permanent withhold actions undertaken by thedepartment during the compliance review period.AppointmentsIn all cases not excepted or exempted by Article VII of the California Constitution, theappointing power must fill positions by appointment, including cases of transfers,reinstatements, promotions, and demotions in strict accordance with the Civil ServiceAct and Board rules. (Gov. Code, § 19050.) The hiring process for eligible candidateschosen for job interviews shall be competitive and be designed and administered to hirecandidates who will be successful. (Cal. Code Regs., tit. 2, § 250, subd. (b).) Interviewsshall be conducted using job-related criteria. (Ibid.) Persons selected for appointmentshall satisfy the minimum qualifications of the classification to which he or she isappointed or have previously passed probation and achieved permanent status in thatsame classification. (Cal. Code Regs., tit. 2, § 250, subd. (d).) While persons selectedfor 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.) This9SPB Compliance ReviewDepartment of Consumer Affairs
section does not apply to intra-agency job reassignments. (Cal. Code Regs., tit. 2, §250, subd. (e).)For the purposes of temporary appointments, an employment list is considered not toexist where there is an open eligible list that has three or fewer names of persons willingto accept appointment and no other employment list for the classification is available.(Cal. Code Regs., tit. 2, § 265.) In such a situation, an appointing power may make atemporary appointment in accordance with section 265.1 (Ibid.) A TemporaryAuthorization Utilization (TAU) appointment shall not exceed nine months in a 12-monthperiod. (Cal. Const., art. VII.) In addition, when a temporary appointment is made to apermanent position, an appropriate employment list shall be established for each classto which a temporary appointment is made before the expiration of the appointment.(Gov. Code, § 19058.)During the period under review, March 1, 2019, through August 31, 2019, the DCAmade 577 appointments. The CRU reviewed 59 of those appointments, which are listedbelow:ClassificationAccountant TraineeAdministrative AssistantAssociate GovernmentalProgram AnalystAthletic InspectorAttorney IIIAttorney IIIBusiness Services Officer I(Specialist)Consumer ServicesRepresentativeEnforcementRepresentative I, CSLB(Non-Peace Officer)Flammability Research TestEngineerInformation TechnologyAssociateInspector Board on ListCertification ListTenureTime BasePermanentPermanentFull TimeFull TimeNo. ofAppts.21Certification ListPermanentFull Time2Certification ListCertification ListCertification ListPermanent IntermittentLimited Term Full TimePermanentFull Time111Certification ListPermanentFull Time2Certification ListPermanentFull Time1Certification ListPermanentFull Time1Certification ListPermanentFull Time1Certification ListLimited TermFull Time1Certification ListPermanentFull Time1Certification ListPermanentFull Time4SPB Compliance ReviewDepartment of Consumer Affairs
ClassificationInformation TechnologySpecialist IMangement ServicesTechnicianOffice Technician (General)Office Technician (Typing)Program Representative I,DCAProgram Representative III(Supervisor), DCAProgram Technician IIResearch Data Analyst IISpecial InvestigatorSpecial InvestigatorStaff Services Analyst(General)Staff Services Manager IStaff Services Manager IStaff Services Manager II(Supervisory)Staff Services Manager II(Supervisory)Assistant ExaminationProctorExamination ProctorConsumer ServicesRepresentativeEnforcementRepresentative I, CSLBInformation TechnologySpecialist IInformation TechnologySupervisor IIInspector II, DCAOffice Services SupervisorIIOffice Services SupervisorIIProgram Technician IIProgram Technician IIIResearch Data Analyst IIResearch Data Supervisor I11AppointmentTypeTenureTime BaseNo. ofAppts.Certification ListPermanentFull Time1Certification ListPermanentFull Time1Certification ListCertification ListPermanentLimited TermFull TimeFull Time11Certification ListPermanentFull Time2Certification ListPermanentFull Time1Certification ListCertification ListCertification ListCertification ListPermanentPermanentLimited TermPermanentFull TimeFull TimeFull TimeFull Time2111Certification ListPermanentFull Time1Certification ListCertification ListLimited TermPermanentFull TimeFull Time11Certification ListLimited TermFull Time1Certification ListPermanentFull ing andDevelopmentTemporaryIntermittent4PermanentFull Time2TransferPermanentFull Time1TransferPermanentFull Time1TransferPermanentFull Time1TransferPermanentFull Time1TransferPermanentFull Time1TransferPermanentFull anentPermanentPermanentFull TimeFull TimeFull TimeFull Time1112SPB Compliance ReviewDepartment of Consumer Affairs
ClassificationAppointmentTypeTenureTime BaseNo. ofAppts.TransferPermanentFull Time5Staff Services Analyst(General)FINDING NO. 3 – Probationary Evaluations Were Not Provided forAppointments Reviewed and Were Not TimelySummary:The DCA did not provide 3 probationary reports of performance for3 of the 59 appointments reviewed by the CRU. In addition, theDCA did not provide seven probationary reports of performance ina timely manner, as reflected in the tables below.ClassificationAssociate GovernmentalProgram AnalystConsumer ServicesRepresentative (CSLB)Program Technician II (Boardof Registered Nursing - BRN)ClassificationAssociate Governmental ProgramAnalyst (Bureau of CannabisControl)Flammability Research TestEngineer (Bureau of HouseholdGoods and Services - BHGS)Special Investigator (BHGS)Inspector II, DCA (Barbering andCosmetology Board - BCB)Information TechnologySupervisor II (Bureau ofAutomotive Repair - BAR)Program Technician II (VeterinaryMedical cationListCertificationListNumber ofAppointmentsTotal Number ofMissing ProbationReports111111AppointmentTypeNumber ofAppointmentsTotal Number ofLate r11SPB Compliance ReviewDepartment of Consumer Affairs
ClassificationAppointmentTypeNumber ofAppointmentsTotal Number ofLate ProbationReportsStaff Services Analyst (SpeechLanguage Pathology/Hearing AidsDispensers Audiology)Transfer11Criteria:The service of a probationary period is required when an employeeenters or is promoted in the state civil service by permanentappointment from an employment list; upon reinstatement after abreak in continuity of service resulting from a permanentseparation; or after any other type of appointment situation notspecifically excepted from the probationary period. (Gov. Code, §19171.) During the probationary period, the appointing power shallevaluate the work and efficiency of a probationer in the mannerand at such periods as the department rules may require. (Gov.Code, § 19172.) A report of the probationer’s performance shall bemade to the employee at sufficiently frequent intervals to keep theemployee adequately informed of progress on the job. (Cal. CodeRegs., tit. 2, § 599.795.) A written appraisal of performance shallbe made to the Department within 10 days after the end of eachone-third portion of the probationary period. (Ibid.) The Board’srecord retention rules require that appointing powers retain allprobationary reports for five years from the date the record iscreated. (Cal. Code Regs., tit. 2, § 26, subd. (a)(3).)Severity:Serious. The probationary period is the final step in the selectionprocess to ensure that the individual selected can successfullyperform the full scope of their job duties. Failing to use theprobationary period to assist an employee in improving his or herperformance or terminating the appointment upon determinationthat the appointment is not a good job/person match is unfair to theemployee and serves to erode the quality of state government.Cause:The DCA states that managers and supervisors don’t alwaysprovide probation reports, and when they do, they aren’t alwaystimely. It will continue to instruct managers and supervisors tocomplete reports in a time
The CRU conducted a routine compliance review of the Department of Consumer Affairs (DCA) 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
