S.

f TATE
l PERSONN EL
6 i BOARD
801 Capitol Mali Sacramento, CA 95814 l www.spb.ca.gov Governor Edmund G. Brown Jr.
Investigation Arising from the Matter of the | Case No. 13-1216A
Civil Service Appointments Rendered by the
BOARD RESOLUTION AND ORDER
CALIFORNIA DEPARTMENT OF FAIR I FOLLOWING INVESTIGATIVE
EMPLOYMENT AND HOUSING I HEARING
for
ANGELINA ENDSLEY
On January 23, 2014, the State Personnel Board (SPB or Board) adopted the
Proposed Decision filed by the Staff Hearing Officer (SHO) in the case of 13-1216N,
finding that the California Department of Fair Employment and Housing (DFEH) failed to
act in good faith in appointing Angelina Endsley (Endsley) to the positions of DFEH
Consultant lli (Specialist) and DFEH Administrator I. Based on that finding, the Board
issued a Board Resolution and Order directing the Chief Administrative Law Judge or
his designee to conduct further investigation into the actions of DFEH involved
personnel and make findings as to whether disciplinary actions are warranted against
those individuals.
After conducting an investigation, on July 2, 2014, SPBs Administrative Law
Judge (ALJ) submitted to the Board an Investigative Report pursuant to the January 23,
2014, Board Resolution and Order. The five-member Board carefully considered the
Investigative Report and issues this further resolution and order.
ITIS RESOLVED AND ORDERED that:
1. The investigation conducted by the assigned ALJ covered tive separate
individuals employed during the relevant period by DF EH who played a role in
the appointments of Endsley. Upon Conclusion of the investigation, the ALJ
Stale of California | Government Operaiions Agency | Siate Personnei Board
Executive Office 916-653-1028 Appeals Division 916-653-0799 Compliance ReviewlPoicy Divisions 916651-02324 Legal
Office 916-653-1403


DF EH Investigative Report Angelina Endsley
Case No. 13-1216A
Page 2
issued an Investigative Report with detailed findings of fact and determination
of issues as to each subject of the investigation. The findings of fact and
conclusions reached in the Investigative Report identified conduct engaged in
by Personnel/Labor Relations Officer Tyra Gilmer (Gilmer) in association with
the appointments of Endsley that may be subject to discipline under
Government Code sections 19572 and 19680.
. Similarly, the findings of fact and conclusions in the Investigative Report also
identified conduct engaged in by Deputy Director for Administrative Services
Monica Rea in association with the SPBs review and investigation in Case
No. 13-1216N that may be subject to discipline under Government Code
sections |9572 and 19680.
. California Code of Regulations, title 2, section 8, provides:
Any officer or employee who violates any ofthe foregoing provisions of
this regulation, or any other officer or employee in a position of authority who directs any officer or employee to violate any of
these provisions, shall be subject to civil or criminal sanctions as provided in Government Code Sections 19680, 19681, 19682,
19683, 19764, as
well as adverse action as provided in Government Code Sections 19572, 195835, or 19682.
. Government Code section 19682 provides:
Every person who violates any provision of this chapter is guilty of a misdemeanor. In accordance with Section 19683, action
may be taken
by the appointing power, the department, or the executive ofcer of the
board may file charges, against a state employee who violates any provisions of this chapter.


DFEH Investigative Report Angelina Endsley
CaSe N0. 13-1216A
Page 3
5. Pursuant to its authority under Government Code sections 19572, 195835,
and/or 19682, the Board deems the Investigative Report a charging document
under Government Code section 19683 setting forth the alleged misconduct
or inappropriate activities on the part of Gilmer and Rea.
6. The Board refers the case to the Chief Administrative Law Judge or his
designee to conduct evidentiary hearings, affording Gilmer and Rea their due
process rights, to determine whether charges against Gilmer and Rea under
Government Code section 19572 can be sustained, and if so, what the just
and proper penalties are for the proven misconduct. The Chief Administrative
Law Judge or his designee shall submit a Proposed Decision after the
evidentiary hearings to the Board for review and adoption.
7. The ALJs Investigative Report is attached and served on the parties together
with this resolution and order.
STATE PERSONNEL BOARD
Patricia Clarey, President Kimiko Burton, Vice President Richard Costigan, Member
Lauri Shanahan, Member Maele-y Tom, Member


DFEH Investigative Report Angelina Endsley
Case No. 13-1216A
Page 4
The foregoing Board Resolution and Order Following investigative Hearing was
made and adopted by the State Personnel Board, during its meeting of July 2, 2014, as
reflected in the record of the meeting and Board minutes.
Isl
SUZANNE AMBROSE Executive Officer


Investigation Arising From the Matter of the | Case No. 13-1216A Civil Service Appointments Rendered by the
INVESTIGATIVE REPORT CALIFORNIA
DEPARTMENT OF FAIR EMPLOYMENT AND HOUSING
For
ANGELINA ENDSLEY
INTRODUCTION
During its meeting of January 23, 2014, the State Personnel Board (Board or
SPB) issued its Resolution and Order in SPB Case No. 13-1216N (ln the Matter of the
Civil Sen/ice Appointments Rendered by the California Department of Fair Employment
and Housing for Ange/ina Ends/ey), wherein, as the result of an audit and subsequent
hearing Conducted by SPB staff, the Board determined, among other things, that the
Department of Fair Employment and Housing (DFEH) had acted in bad faith when
appointing one of its employees, Angelina Endsley (Endsley), to the FEH Consultant |||,
Specialist, (Consultant III) olassiflcation, and later to the Administrator | classification.
More particularly, the Board determined that because Endsley derived her eligibility for
appointment to the Consultant Ill classification through the Special Investigator eligibility
list which DFEH was using as an appropriate list for making suoh appointments -
Endsley needed to meet the minimum qualitioation patterns for both the Special
Investigator and Consultant ||| classifications. Although Endsley appeared to meet the
minimum qualifications for appointment to the Special Investigator classicaton, the
Board determined that she did not meet the minimum qualifications for appointment to
the Consultant ||| classification, since that classification required, among other things,
that candidates have experience as a Consultant DFEH had determined that,


Investigative Report
Case No. IB-1216A
Page 2 of 59
although Endsley had not been employed as a Consultant and instead was employed
as a Legal Analyst, she had been performing the duties of a Consultant Il. Therefore,
DFEH credited the time Endsley spent as a Legal Analyst as time spent as a Consultant
||. The Board specifically found it was improper for DFEH to have done so and,
therefore, deemed the appointment to have been illegal. As part of its Resolution and
Order, the Board issued the following directive:
This matter is referred to the Chief Administrative Law Judge or his designee for the purpose of investigating the actions of
current or former DFEH personnel involved in Endsleys unlawful appointments as identified in the adopted Proposed Decision.
Following the investigation, the Chief Administrative Law Judge or his designee shall prepare findings and make
recommendations on Whether disciplinary actions against any individuals that are the subject of this investigation are
appropriate. The findings and recommendations shall be submitted to the Executive Officer or her designee. ln accordance with
Title 2, California Code of Regulations, section 8, the Executive Officer or her designee may direct that adverse
action be taken against any individuals as may be recommended.
The Chief Administrative Law Judge (CALJ) thereafter assigned the matter to
Administrative Law Judge (ALJ), Bruce A. Monfross, for purposes of conducting the
Board-ordered investigation. The following current or former DFEH personnel were
identified as appropriate subjects for investigation, as they all had a role in Endsleys
appointments to the two classifications in question: Deputy Director - Administrative
Services, Monica Rea (Rea); Chief Enforcement Officer Tim Muscat (Muscat);
Personnel/Labor Relations Officer Tyra Gilmer (Gilmer); Associate Personnel Analyst
Robin lcelow (|celow); and Associate Personnel Analyst Chris Thomas (Thomas).1
1 At the time of the investigation, Muscat was employed as a Deputy Attorney General at the Department of Justice, Gilmer was
employed as a Staff Services Manager at the California Department of Corrections Health Care Services, and lcelow was
employed as an Associate Personnel Specialist at the Department of Housing and Community Development. Rea and Thomas
remained employed at DFEH.


Investigative Report
Case No. 13-1216A
Page 3 of 59
Because the Boards decision in SPB Case No. 13-1216N concluded that the
primary infirmity with respect to Endsleys appointment to the Administrator |
classification was the fact that her prior appointment to the Consultant ||| classification
was illegal, this investigation focused primarily on the circumstances underlying
Endsleys appointment to the Consultant ||| classification. The investigation entailed
reviewing all documents submitted to the SPB by DFEH in SPB Case No. 13-1216N,
and issuing subpoenas for additional document production; and for conducting
investigative interviews of Rea, Muscat, Gilmer, lcelow, Thomas, and Endsley.2
LEGAL AUTHORITY
The merit system of employment in Californias state government is set forth in
Article VII of the California Constitution, section 1, subdivision (b) which provides that
permanent appointment and promotion in the state civil service "shall be made under a
general system based on merit ascertained by competitive examination. (California
State Personnel Board v. California State Employees Assn, Local 1000, SEIU, AFL
CIO (SPB v. CSEA) (2005) 36 Cal.4th 758, 764, quoting Cal. Const., art. VII, section 1,
subd. (b).) The constitutionally-mandated merit principle of employment was adopted
by California voters in 1934 in an effort to eliminate the spoils system of political
patronage from state employment and to ensure that all appointments and promotions
in state service be made solely on the basis of merit. (ld., quoting Pacific Legal
Foundation V. Brown (1981) 29 Ca|.3d 168, 182-184). Article VII of the Constitution also
2 The investigative interviews were originally scheduled to be conducted on February 24-26, 2014; however, the legal
representatives for Rea, Muscat, Gilmer, and Icelow requested a continuance of the interviews for purposes of determining
whether a conflict existed n representing the individuals collectively. A one-week continuance was granted, and the interviews
for those individuals were conducted on March 4-6, 2014.


Investigative Report
Case No. 13-1216A
Page 4 of 59
mandated the creation of a non-partisan personnel board (the SPB) to enforce the ovil
Service Statutes (Cal. Const., art. Vll, 2, 3, (Subd. (a)), aS Well aS an executive officer
to administer all applicable StatuteS and ruleS under the Boards authority. (Cal. Const.,
art. Vll, 2, Subd. (o), 3, Subd. (b).)
ln order to implement the inviolate merit principle of employment in State
government, the Legislature passed the State Civil Service Act (Gov. Code 18500 et
seq.), the purpose of which is to ensure that appointments to state office are made on
the basis of merit, as ascertained by competitive examination, which has been
described as the cornerstone of the merit principle. (SPB v. CSEA, supra, 36 Ca|.4th
at 765, citing State Personnel Board v. Fair Employment and Housing Commission
(1985) 39 Ca|.3d 422, 432, and Alexander v. State Personnel Board (2000) 80
Ca|.App.4th 526, 542.)
The State Civil Service Act authorizes the SPB to, among other things, conduct
audits (Gov. Code 18660-18662) and investigations (Gov. Code 18670-18683)
concerning Whether appointing powers have complied with state merit principles when
making appointments to the state civil service. More specifically, with respect to the
SPBs audit authority, Government Code section 18661 provides:
(a) The board may conduct an audit of any appointing authoritys personnel practices to ensure compliance with the civil service
laws and board regulations. The board may audit selection and examination procedures, appointments, promotions, the
management of probationary periods, personal services contracts, discipline and adverse actions, or any other area related to the
operation of merit principle in state civil service.
(b) When conducting an audit, the board may inspect documents, policies,
practices, and procedures of the appointing authority relating to its personnel practices and interview appointing authority staff
and Witnesses


Investigative Report Case No. 13-1216A Page 5 of 59
regarding the subject of the audit. Failure by an appointing authority to cooperate with an audit may result in corrective action.
(c) Upon completion of the audit, the board may provide a report to the appointing authority and the department, identifying any
deficiencies in the appointing authority's personnel practices, policies, and procedures.
(d) lf the board finds an appointing authority deficient in personnel practices, policies, and procedures, the appointing authority
shall be subject to corrective action. The board may order remedies including, but not limited to, any or of the following:
(1) Revocation or modification of the terms of the delegation agreement between the appointing authority and the department.
(2) That the appointing authority compensate the department for the actual and necessary cost of any and all of the personnel
functions the department performs and training and supervision the department provides on behalf of the appointing authority,
either permanently or for a specifled term.
(3) Void examinations administered by the appointing authority, abolish eligibility lists, and void appointments made therefrom.
(4) Seek approval from the Department of Finance for redirection to the department of a sufficient number of the appointing
authoritys positions to perform all personnel related functions formerly performed by the appointing authority.
With respect to the SPBs investigative authority, Government Code section
18670 provides:
The board may hold hearings and make investigations concerning all matters relating to the enforcement and effect of this part
and rules prescribed under this part. It may inspect any state institution, ofce, or other place of employment affected by this part
to ascertain whether this part and the board rules are obeyed.
The board shall make investigations and hold hearings at the direction of the Governor or the Legislature or upon the petition of
an employee or a citizen concerning the enforcement and effect of this part and to enforce the observance of Article VII of the
Constitution and of this part and the rules made under this part.


Investigative Report Case No. 13-1216A Page 6 of 59
Government Code section 18671 further provides:
Such hearings and investigations may be conducted by the board, any member, or any authorized representative of the board.
Any authorized person conducting such hearing or investigation may administer oaths, subpoena and require the attendance of
Witnesses and the production of books or papers, and cause the depositions of Witnesses residing Within or Without the state to
be taken in the manner prescribed by law for like depositions in civil cases in the superior court of this state under Title 4
(commencing with Section 2016.010) of Part 4 of the Code of Civil Procedure.
Additionally, Government Code section 18676 provides:
When ordered to do so, a Witness shall not be excused from testifying or from producing any documentary evidence in that
investigation or hearing upon the ground that the testimony or documentary evidence required of
the witness may tend to incriminate or subject the Witness to penalty or
forfeiture, provided the Witness has been granted use and derivative use,
or transactional immunity by the appropriate law enforcement authority.
Moreover, in accordance with Lybarger v. City of Los Angeles (1985) 40 Ca|.3d 822,
state employees may be disciplined for insubordination for refusing to answer questions
presented to them during an investigation by the Board or its designated representative.
Finally, Government Code section 18679 provides, The board and any person
authorized by it to conduct a hearing or investigation is the head of a department Within
the meaning of Article 2, Chapter 2, Part 1, Division 3, Title 2."
Because the instant investigation arose from an audit conducted by the SPB, this
investigation was conducted in accordance with the SPB's investigative and audit
authority.
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