COMPLIANCE REVIEW REPORT

CALIFORNIA TAHOE CONSERVANCY

Compliance Review Unit State Personnel Board January 22, 2021

TABLE OF CONTENTS
Introduction	1
Executive Summary	2
Background	3
Scope and Methodology	3
Findings and Recommendations	6
Appointments	6
Corrective Action	8
Equal Employment Opportunity	8
Corrective Action	10
Personal Services Contracts	10
Compensation and Pay	13
Leave	17
Policy and Processes	21
Departmental Response	23
SPB Reply	24

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 California Tahoe Conservancy (CTC) 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	

Appointments	Probationary Evaluations Were Not Provided for All Appointments Reviewed and Those That Were Reviewed Were Untimely	
Equal Employment Opportunity	Equal Employment Opportunity Officer’s Duty Statement Does Not Reflect EEO Duties	
Personal Services Contracts	Unions Were Not Notified of Personal Services Contracts	
Mandated Training	Mandated Training Complied with Statutory Requirements	
Compensation and Pay	Salary Determinations Complied with Civil Service Laws, Board Rules, and CalHR Policies and Guidelines	

Compensation and Pay	Hiring Above Minimum Requests Complied with Civil Service Laws, Board Rules, and/or CalHR Policies and Guidelines	

Compensation and Pay	Out of Class Pay Authorizations Complied with Civil Service Laws, Board Rules, and CalHR Policies and Guidelines	

Leave	Positive Paid Employee’s Tracked Hours Complied with Civil Service Laws, Board Rules, and/or CalHR Policies and Guidelines	
Leave	Administrative Time Off Was Not Properly Documented	

Leave	Leave Auditing and Timekeeping 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	

Area	Finding	

Policy	Workers’ Compensation Process Complied with Civil Service Laws, Board Rules, and/or CalHR Policies and Guidelines	

Policy	Performance Appraisal Policy and Processes Complied with Civil Service Laws and Regulations and CalHR Policies and Guidelines	

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 CTC, established in 1985, has a mission to lead California’s efforts to restore and enhance the extraordinary natural and recreational resources of the Lake Tahoe Basin (Basin). California’s ten State conservancies play an integral role in conserving, protecting, and restoring natural resources and providing public recreational opportunities. Together, the conservancies comprise a coordinated effort, bringing government resources to designated regions of State and national significance. The CTC owns and manages nearly 4,700 parcels of land, totaling around 6,500 acres, for the purpose of protecting the natural environment and promoting public recreation and access to Lake Tahoe.

The CTC has provided over 170 grants to local governments and nonprofit organizations for projects under the Lake Tahoe Environmental Improvement Program to restore the Lake Tahoe watershed, provide public recreation and access, protect ecologically important lands, improve forest health, and reduce the threat of wildfire. The CTC has funded hundreds of environmental improvement projects, and has played a major role in the restoration of the Basin’s most environmentally sensitive areas, addressing the threat of climate change, and the reduction of wildfire risk within the Basin. In its first thirty years, these activities totaled over $450 million.

SCOPE AND METHODOLOGY

The scope of the compliance review was limited to reviewing the CTC’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 the CTC’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.

The CTC did not conduct any examinations or permanent withhold actions during the compliance review period.

A cross-section of the CTC’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 CTC provided, which included Notice of Personnel Action (NOPA) forms, Request for Personnel Actions (RPA’s), vacancy postings, certification lists, transfer movement worksheets, employment history records, correspondence, and probation reports.

The CTC did not conduct any unlawful appointment investigations during the compliance review period. Additionally, the CTC did not make any additional appointments during the compliance review period.

The CTC’s appointments were also selected for review to ensure the CTC applied salary regulations accurately and correctly processed employees’ compensation and pay. The CRU examined the documentation that the CTC 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, and out-of-class assignments. During the compliance review period, the CTC did not issue or authorize red circle rate requests, arduous pay, bilingual pay, monthly pay differentials, or alternate range movements.

The review of the CTC’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).

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

The CTC’s PSC’s were also reviewed.2 It was beyond the scope of the compliance review to make conclusions as to whether the CTC’s justifications for the contracts were legally sufficient. The review was limited to whether the CTC’s practices, policies, and procedures relative to PSC’s complied with procedural requirements.

The CTC’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 CEAs were provided leadership and development training and sexual harassment prevention training within statutory timelines.

The CRU also identified the CTC’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 CTC to provide a copy of their leave reduction policy.

The CRU reviewed the CTC’s Leave Activity and Correction Certification forms to verify that the CTC 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 CTC’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 CTC’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 CTC employees who used Administrative Time Off (ATO) in order to ensure that ATO was appropriately administered. Further, the CRU reviewed a selection of CTC positive paid employees whose hours are tracked during the compliance review period in order to ensure that they adhered to procedural requirements. During the compliance review period, the CTC did not have any employees with non-qualifying pay period transactions.

Moreover, the CRU reviewed the CTC’s policies and processes concerning nepotism, workers’ compensation, and performance appraisals. The review was limited to whether the CTC’s policies and processes adhered to procedural requirements.

2If 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 CTC declined to have an exit conference. CRU received and carefully reviewed the CTC’s written response on December 18, 2020, which is attached to this final compliance review report.

FINDINGS AND RECOMMENDATIONS

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, December 1, 2018, through November 30, 2019, the CTC made sixteen appointments. The CRU reviewed eight of those appointments, which are listed below:

Classification	Appointment Type	Tenure	Time Base	No. of Appts.	
Associate Environmental Planner	Certification List	Permanent	Full Time	1	
Graduate Legal Assistant	Certification List	Limited Term	Full Time	1	
Senior Environmental Scientist (Specialist)	Certification List	Permanent	Full Time	1	
Senior Environmental Scientist (Supervisor)	Certification List	Permanent	Full Time	1	
Attorney III	Permissive Reinstatement	Permanent	Full Time	1	
Legal Analyst	Permissive Reinstatement	Permanent	Full Time	1	

Classification	Appointment Type	Tenure	Time Base	No. of Appts.	
Environmental Services Intern	Temporary	Intermittent	Temporary	1	
Forestry Aide	Temporary	Intermittent	Temporary	1	

FINDING NO. 1 – Probationary Evaluations Were Not Provided for All Appointments Reviewed and Those That Were Reviewed Were Untimely

Summary:	The CTC did not provide two probationary reports of performance for one of the eight appointments reviewed by the CRU. In addition, the CTC did not provide three probationary reports of performance in a timely manner, as reflected in the tables below.

Classification	
Appointment Type	Number of Appointments	Total Number of Missing Probation Reports	
Attorney III	Permissive Reinstatement	1	2	

Classification	
Appointment Type	
Number of Appointments	Total Number of Late Probation Reports	
Associate Environmental Planner	Certification List	1	1	
Senior Environmental Scientist (Specialist)	Certification List	1	2	

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. (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 CTC states provides two factors as cause for this finding: (1) oversight by management while working from home during the COVID-19 pandemic; and, (2) a supervisor, who has since retired, was responsible for two late reports.

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

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).).

FINDING NO. 2 – Equal Employment Opportunity Officer’s Duty Statement Does Not Reflect EEO Duties

Summary:	An Environmental Planning Manager II serves as the CTC’s EEO Officer. Although the CTC’s EEO program outlines the roles and responsibilities of the EEO Officer, the Environmental Planning Manager’s duty statement provided by the CTC does not contain EEO Officer related duties.

Criteria:	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).) The EEO Officer shall, among other duties, analyze and report on appointments of employees, bring issues of concern regarding EEO to the appointing power and recommend appropriate action, and perform other duties necessary for the effective implementation of the agency EEO plans. (Gov. Code, § 19795, subd. (a).)

Severity:	Very Serious. The EEO Officer is responsible for developing, implementing, coordinating, and monitoring an effective EEO program. Due to the substantial responsibilities held by each department’s EEO Officer, it is essential that each department, dedicate sufficient staff resources to successfully maintain an effective EEO program.

Cause:	The CTC states that when the Deputy Director assumed the role of the EEO Officer, the HR Director overlooked the need to formally add the EEO duties to the Deputy Director’s duty statement.
Corrective Action: Within 90 days of the date of this report, the CTC must submit to the SPB a written corrective action response including an updated duty statement for the EEO Officer. Copies of relevant documentation demonstrating that the corrective action has been implemented must be included with the corrective action response.

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.)

During the period under review, March 1, 2019, through February 28, 2020, the CTC had three PSC’s that were in effect. The CRU reviewed the PSC’s, which are listed below:

Vendor	Services	Contract Dates	Contract Amount	Justification Identified?	Union Notification?	
Bushwhackers
Tree Service	Tree Removal	1/1/19-
12/31/21	$45,000	Yes	No	
CTL Forest Management, Inc.	Forest Fuel Reduction	4/20/19-
3/14/20	$524,725	Yes	No	

Vendor	Services	Contract Dates	Contract Amount	Justification Identified?	Union Notification?	
Tieslau Paving and Excavating	Heavy Equipment Services	4/22/19-
4/30/22	
$50,000	
Yes	
No	

FINDING NO. 3 – Unions Were Not Notified of Personal Services Contracts

Summary:	The CTC did not notify unions prior to entering into all three of the PSC’s reviewed.

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:	To CTC states its administrative staff experienced high turnover in recent years. As a consequence, staff overlooked the requirement to submit a letter to union for PSC’s.

Corrective Action: It is the contracting department’s responsibility to identify and notify any unions whose members could potentially perform the type of work to be contracted prior to executing the PSC. The PSC’s reviewed during this compliance review involved tree removal, forest fuel reduction, and heavy equipment services, functions which various rank-and-file civil service classifications perform. Within 90 days of the date of this report, the CTC 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.)

Upon the initial appointment of any employee designated in a supervisory position, the employee shall be provided a minimum of 80 hours of training, as prescribed by the CalHR. (Gov. Code, § 19995.4, subd. (b).) The training addresses such topics as the role of the supervisor, techniques of supervision, performance standards, and sexual harassment and abusive conduct prevention. (Gov. Code, §§ 12950.1, subds. (a), and (b), & 19995.4, subd. (b).)

Additionally, the training must be successfully completed within the term of the employee’s probationary period or within six months of the initial appointment, unless it is demonstrated that to do so creates additional costs or that the training cannot be completed during this time period due to limited availability of supervisory training courses. (Gov. Code, § 19995.4, subd. (c).) As to the sexual harassment and abusive- conduct prevention component, the training must thereafter be provided to supervisors once every two years. (Gov. Code, § 12950.1.)

Within 12 months of the initial appointment of an employee to a management or Career Executive Assignment (CEA) position, the employee shall be provided leadership training and development, as prescribed by CalHR. (Gov. Code, § 19995.4, subds. (d) & (e).) For management employees the training must be a minimum of 40 hours and for CEAs the training must be a minimum of 20 hours. (Ibid.) Thereafter, for both categories of appointment, the employee must be provided a minimum of 20 hours of leadership training on a biennial basis. (Ibid.)

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 CTC’s mandated training program that was in effect during the compliance review period, March 1, 2018, through February 28, 2019.

FINDING NO. 4 – Mandated Training Complied with Statutory Requirements

The CTC provided ethics training to its 11 new filers within 6 months of appointment and, for 10 existing filers, “at least once during each consecutive period of two calendar years, commencing on the first odd-numbered year thereafter.” The CTC also provided supervisory training to its three new supervisors within 12 months of appointment. In addition, the CTC provided sexual harassment prevention training its three new supervisors within six months of appointment, and sexual harassment prevention training to its four existing supervisors every two years. Thus, the CTC complied with mandated training requirements within statutory timelines.

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 rate3 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, December 1, 2018, through November 30, 2019, the CTC made 16 appointments. The CRU reviewed eight of those appointments to determine if the CTC applied salary regulations accurately and correctly processed employees’ compensation, which are listed below:

3 “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).

Classification	Appointment Type	
Tenure	
Time Base	Salary (Monthly Rate)	
Associate Environmental Planner	Certification List	Permanent	Full Time	$5,484	
Graduate Legal Assistant	Certification List	Limited Term	Full Time	$4,560	
Senior Environmental Scientist (Specialist)	Certification List	Permanent	Full Time	$6,491	
Senior Environmental Scientist (Supervisor)	Certification List	Permanent	Full Time	$8,912	
Attorney III	Permissive Reinstatement	Permanent	Full Time	$10,761	
Legal Analyst	Permissive Reinstatement	Permanent	Full Time	$4,686	
Environmental Services Intern	Temporary	Intermittent	Temporary	$2,554	
Forestry Aide	Temporary	Intermittent	Temporary	$3,020	

FINDING NO. 5 – Salary Determinations Complied with Civil Service Laws, Board Rules, and CalHR Policies and Guidelines

The CRU found no deficiencies in the salary determinations that were reviewed. The CTC appropriately calculated and keyed the salaries for each appointment and correctly determined employees’ anniversary dates ensuring that subsequent merit salary adjustments will satisfy civil service laws, Board rules and CalHR policies and guidelines.

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.)

Extraordinary qualifications may provide expertise in a particular area of a department’s program. (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.4 (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.)

During the period under review, December 1, 2018, through November 30, 2019, the CTC authorized one HAM request. The CRU reviewed the authorized HAM request to determine if the CTC correctly applied Government Code section 19836 and appropriately

4 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.

verified, approved and documented candidates’ extraordinary qualifications, which is listed below:

Classification	Appointment Type	
Status	
Salary Range	Salary (Monthly Rate)	
Accounting Officer (Specialist)	Certification List	New to State	
$4,496 - $5,629	
$4,926	

FINDING NO. 6 – Hire Above Minimum Requests Complied with Civil Service Laws, Board Rules, and/or CalHR Policies and Guidelines

The CRU found that the HAM request the CTC made during the compliance review period, satisfied civil service laws, Board rules and CalHR policies and guidelines.

Out-of-Class Assignments and Pay

For excluded5 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.)

5 “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.

During the period under review, December 1, 2018, through November 30, 2019, the CTC issued OOC pay to one employee. The CRU reviewed the OOC assignment to ensure compliance with applicable MOU provisions, salary regulations, and CalHR policies and guidelines. These are listed below:

Classification	Bargaining Unit	Out-of-Class Classification	Time Frame	
Information Technology Specialist II	R01	Information Technology Manager I	10/1/18-1/29/19	

FINDING NO. 7 –	Out of Class Pay Authorizations Complied with Civil Service Laws, Board Rules, and CalHR Policies and Guidelines

The CRU found no deficiencies in the OOC pay assignments that the CTC authorized during the compliance review period. OOC pay was issued appropriately to the employee 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.

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 days6 worked and paid absences, 7 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-

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

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 1,500 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 1,500 hours in any calendar year. (Applicable Bargaining Unit Agreements.) However, Bargaining Unit 6 employees may work up to 2,000 hours in any calendar year.

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 CTC had one positive paid employee whose hours were tracked. The CRU reviewed the positive paid appointment to ensure compliance with applicable laws, regulations, policies and guidelines, which are listed below:

Classification	Tenure	Time Frame	Time Worked	
Student Assistant	Intermittent	4/1/19 – 4/30/20	996.1 hours	

FINDING NO. 8 – Positive Paid Employee’s Tracked Hours Complied with Civil Service Laws, Board Rules, and/or CalHR Policies and Guidelines

The CRU found no deficiencies in the positive paid employee reviewed during the compliance review period. The CTC provided sufficient justification and adhered to applicable laws, regulations and CalHR policy and guidelines for the positive paid employee.

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, December 1, 2018, through November 30, 2019, the CTC placed 34 employees on ATO. The CRU reviewed 15 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	
Attorney III	12/24/2018 – 1/4/2019	4 hours	
Legal Analyst	12/24/2018 – 1/4/2019	4 hours	
Public Land Management Specialist III	12/24/2018 – 1/4/2019	4 hours	
Public Land Management Specialist III	12/24/2018 – 1/4/2019	4 hours	
Public Land Management Specialist III	12/24/2018 – 1/4/2019	4 hours	
Public Land Management Specialist III	12/24/2018 – 1/4/2019	4 hours	
Public Land Manger II	12/24/2018 – 1/4/2019	4 hours	
Research Data Analyst I	12/24/2018 – 1/4/2019	4 hours	
Sr. Accounting Officer (Specialist)	12/24/2018 – 1/4/2019	4 hours	
Sr. Accounting Officer (Supervisor)	12/24/2018 – 1/4/2019	4 hours	
Sr. Environmental Scientist (Specialist)	12/24/2018 – 1/4/2019	4 hours	
Sr. Environmental Scientist (Supervisor)	12/24/2018 – 1/4/2019	4 hours	
Staff Services Manager I (Specialist)	12/24/2018 – 1/4/2019	4 hours	
Staff Services Manager I (Specialist)	12/24/2018 – 1/4/2019	4 hours	
Student Assistant	12/24/2018 – 1/4/2019	4 hours	

FINDING NO. 9 – Administrative Time Off Was Not Properly Documented

Summary:	The CTC did not grant ATO in conformity with the established policies and procedures. All of the 15 ATO authorizations reviewed by the CRU 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.) Appointing authorities must maintain thorough documentation demonstrating the justification for the ATO, the length of the ATO, and the approval of the ATO. (Human Resources Manual Section 2121.)

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 CTC states that the HR Director kept email documentation and timesheets, however, separate documentation of ATO usage, as required, was not kept.

Corrective Action: Within 90 days of the date of this report, the CTC 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, September 1, 2019, through November 30, 2019, the CTC reported one unit comprised of 45 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	
Sept 2019	001	45	45	0	
Oct 2019	001	45	45	0	
Nov 2019	001	45	45	0	

FINDING NO. 10 – Leave Auditing and Timekeeping Complied with Civil Service Laws, Board Rules, and/or CalHR Policies and Guidelines

The CRU reviewed employee leave records from three different leave periods to ensure compliance with applicable laws, regulations and CalHR policy and guidelines. Based on our review, the CRU found no deficiencies. The CTC kept complete and accurate time and attendance records for each employee and officer employed within the department and utilized a monthly internal audit process to verify all leave input into any leave accounting system was keyed accurately and timely.

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 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. 11 – 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 CTC’s commitment to the state policy of recruiting, hiring and assigning employees on the basis of merit. Additionally, the CTC’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, subd. (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. 12 –	Workers’ Compensation Process Complied with Civil Service Laws, Board Rules, and/or CalHR Policies and Guidelines

The CRU verified that the CTC 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 CTC received workers’ 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 eight permanent CTC 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	
Associate Governmental Program Analyst	7/31/19	
Forester II	8/2/19	
Management Services Technician	4/1/19	
Public Land Management Specialist III	12/1/2019	
Public Land Manager II	2/1/19	
Research Data Analyst I	10/16/19	
Sr. Environmental Planner	9/2/2019	
Sr. Environmental Scientist (Specialist)	9/1/2019	

FINDING NO. 13 – Performance Appraisal Policy and Processes Complied with Civil Service Laws and Regulations and CalHR Policies and Guidelines

The CRU found no deficiencies in the performance appraisals selected for review. Accordingly, the CTC performance appraisal policy and processes satisfied civil service laws, Board rules, policies and guidelines.

DEPARTMENTAL RESPONSE

The CTC’s response is attached as Attachment 1.

SPB REPLY

Based upon the CTC’s written response, the CTC 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.

Attachment 1

B O A R D   M E M B E R S

NATURAL RESOURCES AGENCY
Wade Crowfoot, Secretary Elizabeth Williamson, Designee

DEPARTMENT OF FINANCE
Keely Bosler, Director Gayle Miller, Designee

SENATE PUBLIC MEMBER
Lynn Suter

ASSEMBLY PUBLIC MEMBER
Adam Acosta

CITY OF SOUTH LAKE TAHOE
Tamara Wallace

EL DORADO COUNTY
Sue Novasel, Chair

PLACER COUNTY
Cindy Gustafson, Vice Chair

U.S. FOREST SERVICE (ex-officio)
Danelle D. Harrison

JANE FREEMAN
Acting Executive Director

December 15, 2020 Suzanne Ambrose
Compliance Review Division
State Personnel Board 801 Capitol Mall
Sacramento, CA 95814

Re: Compliance Review Responses to Findings

Dear Ms. Ambrose:

The California Tahoe Conservancy (Conservancy) has reviewed the State Personnel Board’s (SPB) draft Compliance Review Report for the Conservancy, provided in November 2020. The Conservancy finds that the report provides a thorough and accurate summary of our compliance with state standards. We take our responsibility seriously and are committed to correcting all deficiencies noted in the report. These include incomplete and untimely probationary reports; a critical gap in a duty statement; lack of union notification of personal services contracts; and inadequate documentation of administrative time off (ATO). Per SPB’s request, this memorandum acknowledges that we have received and understand the report and identifies the Cause for each Finding that SPB found out of compliance. We have already begun discussing necessary internal
improvements and look forward to SPB’s final report as well as beginning to implement corrective actions. If SPB is interested, we have provided an attachment that lists potential corrective actions for each finding based on our internal discussions to date.

Finding No. 1 – Probationary Evaluations Were Not Provided for All Appointments Reviewed and Those That Were Reviewed Were Untimely

Cause: The Conservancy’s Human Resources Director (HR Director) reviews probationary evaluation responsibilities with each new supervisor when they are hired. The HR Director then sends a series of meeting invitations to the supervisor to serve as reminders, with a Std.636 attached (with the employee’s name, classification, probation due dates filled in, and link to CalHR guidance). Each due date has its own calendar invitation.
The HR Director instructs each supervisor to accept the meeting invitations, so they appear on their calendar.

The Conservancy recognizes that probationary reports are the critical final step in the hiring process, and that some probationary reports were either not completed or were late. The incomplete report and one of the late reports happened during the COVID-19 Pandemic and was an oversight by the supervisor(s) and the HR Director while working fulltime from home and adapting to the “New Normal”. The other two late reports happened in 2016 and the supervisor at the time has since retired.

Finding No. 2 – Equal Employment Opportunity Officer’s Duty Statement Does Not Reflect EEO Duties

Cause: The Conservancy’s Deputy Director assumed the role of the EEO officer in 2018 because the previous EEO officer had become part of an EEO investigation. The HR Director overlooked the need to formally add these duties to the Deputy Director’s duty statement.

Finding No. 3 – Unions Were Not Notified of Personal Services Contracts

Cause: The Conservancy administrative staff experienced high turnover in recent years, including all but one staff. The division supervisor is new to state service, and still developing expertise with the full range of state procedures and requirements. Unfortunately, staff overlooked the requirement to submit a letter to union for personnel services contracts.

Finding No. 9 – Administrative Time Off Was Not Properly Documented

Cause: The Conservancy Executive Director authorizes 4.0 hours of ATO usage to fulltime staff and 2.0 hours to part-time staff to be used in conjunction with the Governor’s Informal Holiday in December. The HR Director kept e-mail documentation and timesheets but did not keep separate documentation of ATO usage. Separately and at a different time, two employees that were subject to an EEO investigation and were sent home early and instructed to claim ATO usage. The HR Director did not keep separate documentation of this ATO usage.

In summary, the Conservancy thanks the SBP Compliance Team for the review and appreciates the opportunity to respond to the draft findings. We look forward to implementing corrective actions and will continue to educate and train our staff on the best hiring practices and requirements to ensure compliance with the State’s civil service merit system. If you have any questions or need additional information, please contact Stefanie Melendez, our Human Resources Director, at (530) 318-8584 or stefanie.melendez@tahoe.ca.gov.

Sincerely,

Jane Freeman
Acting Executive Director
Attachment: Potential Corrective Actions CC: Stefanie Melendez, Conservancy

Attachment 1: Potential Corrective Actions

Finding No. 1 – Probationary Evaluations Were Not Provided for All Appointments Reviewed and Those That Were Reviewed Were Untimely

Potential Corrective Action: The Human Resources Director (HR Director) will monitor the timeliness of probation reports and send not only calendar invitations, but also reminder e-mails one week before reports are due. The Conservancy will review these audit findings and continue to reinforce employee evaluation expectations through e-mail and supervisory meetings, including during the indefinite period of COVID-19. The HR Director will report late probationary reports to the Deputy Director.

Finding No. 2 – Equal Employment Opportunity Officer’s Duty Statement Does Not Reflect EEO Duties

Potential Corrective Action: The Deputy Director plans to remain the EEO officer. The HR Director will update the duty statement immediately to reflect EEO duties, including the language provided in the audit findings.

Finding No. 3 – Unions Were Not Notified of Personal Services Contracts

Potential Corrective Action: The Conservancy will implement process improvements to identify state requirements up front prior to entering into Personal Services Contracts.
This will be addressed through the revamping of our fiscal funding requests to identify the need prior to moving agreements forward.

Finding No. 9 – Administrative Time Off Was Not Properly Documented

Potential Corrective Action: In addition to email documentation and staff timesheets, the HR Director will maintain independent documentation demonstrating the justification for ATO, the length of ATO, and the approval for ATO.

1061 Third Street, South Lake Tahoe, California 96150
phone: 530-542-5580	fax: 530-542-5567	e-mail: info@tahoe.ca.gov	web: www.tahoe.ca.gov