California Department Of Education
COMPLIANCE REVIEW REPORTCALIFORNIA DEPARTMENT OF EDUCATIONCompliance Review UnitState Personnel BoardDecember 13, 2016
TABLE OF CONTENTSIntroduction . 1Executive Summary . 1Background . 2Scope and Methodology. 3Findings and Recommendations . 4Examinations . 4Appointments . 7Equal Employment Opportunity (EEO) . 12Personal Services Contracts . 13Mandated Training . 17Departmental Response. 21SPB Reply . 21
INTRODUCTIONEstablished by the California Constitution, the State Personnel Board (the SPB or Board)is charged with enforcing and administering the civil service statutes, prescribingprobationary periods and classifications, adopting regulations, and reviewing disciplinaryactions and merit-related appeals. The SPB oversees the merit-based recruitment andselection process for the hiring of over 200,000 state employees. These employeesprovide critical services to the people of California, including but not limited to, protectinglife and property, managing emergency operations, providing education, promoting thepublic health, and preserving the environment. The SPB provides direction todepartments 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 authority’s personnel practices in five areas:examinations, appointments, equal employment opportunity (EEO), personal servicescontracts (PSC’s), and mandated training to ensure compliance with civil service lawsand board regulations. The purpose of these reviews is to ensure state agencies are incompliance with merit-related laws, rules, and policies and to identify and share bestpractices identified during the reviews. The SPB conducts these reviews on a three-yearcycle.The CRU may also conduct special investigations in response to a specific request orwhen the SPB obtains information suggesting a potential merit-related violation.EXECUTIVE SUMMARYThe CRU conducted a routine compliance review of California Department of Education(CDE) personnel practices in the areas of examinations, appointments, EEO, and PSC’sfrom November 1, 2015, through May 31, 2016, and mandated training from July 1,2014, through July 1, 2016. The following table summarizes the compliance reviewfindings.AreaExaminationsAppointmentsEqual EmploymentOpportunity1FindingExaminations Complied with Civil Service Lawsand Board RulesProbationary Evaluations Were Not Provided forAll Appointments ReviewedEqual Employment Opportunity ProgramComplied with Civil Service Laws and BoardRulesSPB Compliance ReviewCalifornia Department of EducationSeverityIn ComplianceSeriousIn Compliance
AreaPersonal ServicesContractsMandated TrainingMandated TrainingMandated TrainingFindingPersonal Services Contracts Complied withProcedural RequirementsSupervisory Training Was Not Provided for AllSupervisorsEthics Training Was Not Provided for All FilersSexual Harassment Training Was Not Providedfor All SupervisorsSeverityIn ComplianceVery SeriousVery SeriousVery SeriousA color-coded system is used to identify the severity of the violations as follows: Red Very SeriousOrange SeriousYellow Non-serious or TechnicalGreen In ComplianceBACKGROUNDThe CDE oversees the state's diverse and dynamic public school system, which isresponsible for the education of 6.3 million students in more than 10,000 schools. TheState Superintendent of Public Instruction and the 2,400 CDE employees areresponsible for enforcing education law and regulations; and for continuing to reform andimprove public elementary school programs, secondary school programs, adulteducation, some preschool programs, and child care programs.Within the CDE, the State Special Schools & Services Division (SSSD) provides diverseand highly specialized services and resources to individuals with special needs, theirfamilies, and service/care providers. High quality technical assistance, assessmentservices, educational resources, and educational programs are provided to preparestudents for transition to adulthood and promote their independence, cultural awareness,and personal growth.The mission of the CDE is to provide a world-class education for all students, from earlychildhood to adulthood. The CDE serves our state by innovating and collaborating witheducators, schools, parents, and community partners, preparing students to live, work,and thrive in a multicultural, multilingual, and in a highly connected world.2SPB Compliance ReviewCalifornia Department of Education
SCOPE AND METHODOLOGYThe scope of the compliance review was limited to reviewing the CDE examinations,appointments, EEO program, and PSC’s from November 1, 2015, through May 31, 2016,and mandated training from July 1, 2014, through July 1, 2016. The primary objective ofthe review was to determine if the CDE personnel practices, policies, and procedurescomplied with state civil service laws and board regulations, and to recommendcorrective action for those deficiencies identified.A cross-section of the CDE’s examinations and appointments were selected to ensurethat various samples of examinations and appointment types, classifications, and levelswere reviewed. The CRU examined the documentation that the CDE provided, whichincluded examination plans, examination bulletins, job analyses, 511b’s, scoring results,notice of personnel action (NOPA) forms, vacancy postings, application screeningcriteria, hiring interview rating criteria, certification lists, transfer movement worksheets,employment history records, correspondence, and probation reports.The review of the CDE’s EEO program included examining written EEO policies andprocedures; the EEO officer’s role, duties, and reporting relationship; the internaldiscrimination complaint process; the upward mobility program; the reasonableaccommodation program; the discrimination complaint process; and the DisabilityAdvisory Committee (DAC).The CDE’s PSC’s were also reviewed.1 It was beyond the scope of the compliancereview to make conclusions as to whether the CDE justifications for the contracts werelegally sufficient. The review was limited to whether the CDE practices, policies, andprocedures relative to PSC’s complied with procedural requirements.In addition, the CDE’s mandated training was reviewed to ensure all employees requiredto file statements of economic interest were provided ethics training and that all1If an 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 will notaudit 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.3SPB Compliance ReviewCalifornia Department of Education
supervisors were provided basic supervisory and sexual harassment prevention trainingwithin statutory timelines.On November 10, 2016, an exit conference was held with the CDE to explain anddiscuss the CRU’s initial findings and recommendations. On December 6, 2016, theCRU received and carefully reviewed the response, which is attached to this finalcompliance report.FINDINGS AND RECOMMENDATIONSExaminationsExaminations to establish an eligible list must be competitive and of such character as tofairly test and determine the qualifications, fitness, and ability of competitors to performthe duties of the class of position for which he or she seeks appointment. (Gov. Code, §18930.) Examinations may be assembled or unassembled, written or oral, or in the formof a demonstration of skills, or any combination of those tests. (Ibid.) The Boardestablishes minimum qualifications for determining the fitness and qualifications ofemployees for each class of position and for applicants for examinations. (Gov. Code, §18931.) Within a reasonable time before the scheduled date of the examination, thedesignated appointing power shall announce or advertise the examination for theestablishment of eligible lists. (Gov. Code, § 18933, subd. (a).) The advertisement shallcontain such information as the date and place of the examination and the nature of theminimum qualifications. (Ibid.) Every applicant for examination shall file an application inthe office of the department or a designated appointing power as directed in theexamination announcement. (Gov. Code, § 18934.) Generally, the final earned rating ofeach person competing in any examination is to be determined by the weighted averageof the earned ratings on all phases of the examination. (Gov. Code, § 18936.) Eachcompetitor shall be notified in writing of the results of the examination when theemployment list resulting from the examination is established. (Gov. Code, § 18938.5.)During the period under review, the CDE conducted 49 examinations. The CRUreviewed 22 of those examinations, which are listed below:4SPB Compliance ReviewCalifornia Department of Education
Final FileDateNo. ofApplications4/15/201610OpenStatement irector, Early EducationSupport Division CEA- BOpenSOQ12/10/20153Director, GovernmentAffairs, CEA- BOpenSOQ1/7/20169Automotive EquipmentOperator IIOpenTraining ortation ProgramConsultantDeputy Superintendent,Instruction LearningSupport Branch CEA- CDirector, CurriculumFrameworks InstructionalResources Division ficationAppraisalPanel22A modified qualification appraisal panel (Mod QAP) examination is where a candidate uses a computerterminal to respond to examination questions. All questions are provided at the time of the examinationand the candidate responses will be scored against a set number of pre-determined responses by a panel.3In a statement of qualifications (SOQ’s) examination, applicants submit a written summary of theirqualifications and experience related to a published list of desired qualifications. Raters, typically subjectmatter experts, 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.4The training and experience (T&E) 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,which are totaled by the online system or a department exam analyst, and then assigned a percentagescore.5SPB Compliance ReviewCalifornia Department of Education
ExaminationTypeExamComponentsFinal FileDateNo. ation Administrator IContinuousT&E2/19/201613Education Administrator IContinuousT&E4/20/20165Education Administrator IIContinuousT&E11/20/20151Education Administrator IIContinuousT&E2/19/20163Education Fiscal ServicesConsultantContinuousT&E3/15/20166Education ProgramsAssistantContinuousT&E5/20/201615Education on n n n n Research andEvaluation Administrator IContinuousT&E3/15/20164ClassificationChild DevelopmentConsultantChild Nutrition AssistantChild Nutrition Consultant6SPB Compliance ReviewCalifornia Department of Education
ClassificationEducation Research andEvaluation AssistantExaminationTypeExamComponentsFinal FileDateNo. ofApplicationsContinuousT&E12/15/20153FINDING NO. 1 – Examinations Complied with Civil Service Laws and BoardRulesThe CDE administered 22 open examinations to create eligible lists from which to makeappointments. The CDE published and distributed examination bulletins containing therequired information for all examinations. Applications received by the CDE wereaccepted prior to the final filing date and were thereafter properly assessed to determinewhether applicants met the minimum qualifications for admittance to the examination.The CDE notified applicants as to whether they qualified to take the examination, andthose applicants who met the minimum qualifications were also notified about the nextphase of the examination process. After all phases of the examination process werecompleted, the score of each competitor was computed, and a list of eligible candidateswas established. The examination results listed the names of all successful competitorsarranged in order of the score received by rank. Competitors were then notified of theirfinal scores.The CRU found no deficiencies in the examinations that the CDE conducted during thecompliance review period. Accordingly, the CDE fulfilled its responsibilities to administerthose examinations in compliance with civil service laws and board rules.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 Service Actand Board rules. (Gov. Code, § 19050.) Appointments made from eligible lists, by way oftransfer, or by way of reinstatement, must be made on the basis of merit and fitness,which requires consideration of each individual’s job-related qualifications for a position,including his or her knowledge, skills, abilities, experience, and physical and mentalfitness. (Cal. Code Regs., tit. 2, § 250, subd. (a).)During the compliance review period, the CDE made 302 appointments. The CRUreviewed 76 of those appointments, which are listed below:7SPB Compliance ReviewCalifornia Department of Education
AppointmentTypeTenureTime BaseNo. ofAppointmentsCertification ListPermanentFull time1Certification ListPermanentFull time7Certification ListPermanentFull time5Certification ListPermanentFull time1Certification ListPermanentFull time4Certification ListPermanentFull time3Certification ListPermanentFull time2Certification ListPermanentFull time7Certification ListPermanentFull time1Executive SecretaryCertification ListPermanentFull time1Heavy Truck DriverCertification ListPermanentFull time2Certification ListPermanentFull time2Certification ListPermanentFull time2Certification ListTemporaryFull time2Certification ListPermanentFull time1Certification ListLimitedTermFull time1Certification ListPermanentFull time4Certification ListPermanentFull vernmentalProgram AnalystCareer ExecutiveAssignment BCareer ExecutiveAssignment CEducationAdministrator IEducationAdministrator IIEducation ProgramsAssistantEducation ProgramsConsultantEducation Research& EvaluationAdministrator IOffice Assistant(Typing)Office Technician(Typing)Office Technician(Typing) – LEAPStaff InformationSystems Analyst(Specialist)Staff ServicesAnalyst (General)Staff ServicesAnalyst (General)Staff ServicesManager I8SPB Compliance ReviewCalifornia Department of Education
ClassificationAppointmentTypeTenureTime BaseNo. ofAppointmentsStaff ServicesManager IICertification ListPermanentFull time2PermanentFull time1PermanentFull time1PermanentFull time1PermanentFull time1LimitedTermFull time1Business ServicesOfficer I (Supervisor)EducationAdministrator IStaff ServicesManager IIIEducation tementPermissiveReinstatementDispatcher ClerkRetired AnnuitantTemporaryIntermittent1Retired ll time1Attorney IIITransferPermanentFull time1Child NutritionConsultantTransferPermanentFull time1Education ProgramsConsultantTransferPermanentFull time11TransferPermanentFull time2TransferPermanentFull time1TransferPermanentFull time1Attorney IIIStaff ServicesManager IIAssociateGovernmentalProgram AnalystOffice Technician(Typing)Staff ServicesAnalyst (General)Warehouse WorkerFor each of the 51 list appointments, the CDE properly advertised the job vacancies,sent out contact letters, screened applications, interviewed candidates, and cleared thecertification lists for SROA and reemployment, and conducted background and referencechecks as appropriate.9SPB Compliance ReviewCalifornia Department of Education
The CDE made four appointments via mandatory reinstatement. A state agency isrequired to reinstate an employee to his or her former position if the employee is (1)terminated from a temporary or limited-term appointment by either the employee or theappointing power; (2) rejected during probation; or (3) demoted from a managerialposition. (Gov. Code, § 19140.5.) The following conditions, however, must apply: theemployee accepted the appointment without a break in continuity of service and thereinstatement is requested within ten working days after the effective date of thetermination. (Ibid.) The CDE complied with the rules and laws governing mandatoryreinstatements.The CRU reviewed two retired annuitant appointments. The individuals submitted theirapplications and were eligible to be hired as retired annuitants, not to exceed 960 hoursin a fiscal year.The CRU reviewed 18 CDE appointments made via transfer and one appointment madevia permissive reinstatement. A transfer of an employee from a position under oneappointing power to a position under another appointing power may be made if thetransfer is to a position in the same class or in another class with substantially the samesalary range and designated as appropriate by the executive officer. (Cal. Code Reg., tit.2, § 425.) The CDE verified the eligibility of each candidate to their appointed class.However, the CDE did not provide probation reports for all appointments as described infinding 2.FINDING NO. 2 – Probationary EvaluationsAppointments ReviewedSummary:NotProvidedforAllThe CDE did not prepare, complete, and/or retain 13 requiredprobationary reports of performance.ClassificationAssociate GovernmentalProgram AnalystEducation Administrator IIExecutive SecretaryEducation . ofAppointmentsNo. of UncompletedProb. Reports45221211SPB Compliance ReviewCalifornia Department of Education
ClassificationOffice Technician (Typing)Staff Services Manager IAttorney eria:AppointmentTypeNo. ofAppointmentsNo. of UncompletedProb. Reports1111111113A new probationary period is not required when an employee isappointed by reinstatement with a right of return. (Cal. Code Regs.,tit. 2, § 322, subd. (d)(2).) However, the service of a probationaryperiod is required when an employee enters state civil service bypermanent appointment from an employment list. (Cal. Code Regs.,tit. 2, § 322, subd. (a).) In addition, unless waived by the appointingpower, a new probationary period is required when an employee isappointed to a position under the following circumstances: (1)without a break in service in the same class in which the employeehas completed the probationary period, but under a differentappointing power; and (2) without a break in service to a class withsubstantially the same or lower level of duties and responsibilitiesand salary range as a class in which the employee has completedthe probationary period. (Cal. Code Regs., tit. 2, § 322, subd. (c)(1)& (2).)During the probationary period, the appointing power is required toevaluate the work and efficiency of a probationer at sufficientlyfrequent intervals to keep the employee adequately informed ofprogress on the job. (Gov. Code, § 19172; Cal. Code Regs., tit. 2, §599.795.) The appointing power must prepare a written appraisal ofperformance each one-third of the probationary period. (Cal. CodeRegs., tit. 2, § 599.795.)11SPB Compliance ReviewCalifornia Department of Education
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 determination thatthe appointment is not a good job/person match is unfair to theemployee and serves to erode the quality of state government.Cause:The Personnel Services Division (PSD) makes good faith efforts toinform management of the requirements on probationaryevaluations. Management is informed during the supervisory trainingmodules, and are provided the forms and due dates of probationaryevaluations of their employees. Currently, the probationaryevaluations are tracked for compliance by first line supervisors. Inthe future, the CDE will also inform the second line supervisor if theprobationary evaluations are not received timely.Action:It is recommended that within 60 days of the Executive Officer’sapproval of these findings and recommendations, the CDE submit tothe CRU a written corrective action plan that addresses thecorrections the department will implement to ensure conformity withthe probationary requirements of Government Code section 19172.Equal Employment Opportunity (EEO)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 monitoringthe effectiveness of its EEO program. (Gov. Code, § 19794.) To that end, the appointingpower must issue a policy statement committed to equal employment opportunity; issueprocedures for filing, processing, and resolving discrimination complaints; issueprocedures for providing equal upward mobility and promotional opportunities; andcooperate with the CalHR by providing access to all required files, documents and data.(Ibid.) In addition, the appointing power must appoint, at the managerial level, an EEOofficer, who shall report directly to, and be under the supervision of, the director of thedepartment to develop, implement, coordinate, and monitor the department’s EEOprogram. (Gov. Code, § 19795.) In a state agency with less than 500 employees, like theFPPC, the EEO officer may be the personnel officer. (Ibid.)Because the EEO Officer investigates and ensures proper handling of discrimination,sexual harassment and other employee complaints, the position requires separation from12SPB Compliance ReviewCalifornia Department of Education
the regular chain of command, as well as regular and unencumbered access to the headof the organization.Each state agency must establish a separate committee of employees who areindividuals with a disability, or who have an interest in disability issues, to advise thehead 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 thecommittee and take appropriate steps to ensure that the final committee is comprised ofmembers who have disabilities or who have an interest in disability issues. (Gov. Code, §19795, subd. (b)(2).)The CRU reviewed the CDE’s EEO policies, procedures, and programs in effect duringthe compliance review period.FINDING NO. 3 – Equal Employment Opportunity Program Complied with CivilService Laws and Board RulesAfter reviewing the policies, procedures, and programs necessary for compliance withthe EEO program’s role and responsibilities according to statutory and regulatoryguidelines, the CRU determined that the CDE’s EEO program provided employees withinformation and guidance on the EEO process including instructions on how to filediscrimination claims. Furthermore, the EEO program outlines the roles andresponsibilities of the EEO Officer, as well as supervisors and managers. The EEOOfficer, who is at a managerial level, reports directly to the Executive Director of theCDE. In addition, the CDE has an established DAC that reports to the director on issuesaffecting persons with a disability. The CDE also provided evidence of its efforts topromote EEO in its hiring and employment practices, to increase its hiring of personswith a disability, and to offer upward mobility opportunities for its entry-level staff.Accordingly, the CDE’s EEO program complied with civil service laws and board rules.Personal Services ContractsA PSC includes any contract, requisition, or purchase order under which labor orpersonal services is a significant, separately identifiable element, and the business orperson performing the services is an independent contractor that does not have statusas an employee of the State. (Cal. Code Reg., tit. 2, § 547.59.) The CaliforniaConstitution has an implied civil service mandate limiting the state’s authority to contractwith private entities to perform services the state has historically or customarilyperformed. Government Code section 19130, subdivision (a), however, codifiesexceptions to the civil service mandate where PSC’s achieve cost savings for the state.13SPB Compliance ReviewCalifornia Department of Education
PSC’s that are of a type enumerated in subdivision (b) of Government Code section19130 are also permissible. Subdivision (b) contracts include private contracts for a newstate function, services that are not available within state service, services that areincidental to a contract for the purchase or lease of real or personal property, andservices that are of an urgent, temporary, or occasional nature.For cost-savings PSC’s a state agency is required to notify the SPB of its intent toexecute such a contract. (Gov. Code, § 19131.) For subdivision (b) contracts, the SPBreviews the adequacy of the proposed or executed contract at the request of anemployee organization representing state employees. (Gov. Code, § 19132.)During the compliance review period, the CDE had 49 PSC’s that were in effect andsubject to Department of General Services (DGS) approval, and thus our proceduralreview. The CRU reviewed all 21 of those contracts, which are listed below:VendorBoard ofGovernors of n ofDECA, Inc.Foundation forCaliforniaCommunityCollegesInter-Con SecuritySystems, Inc.Merced CountySuperintendent ofSchoolsNapa CountySuperintendent ofSchools14ServicesContract ng7/1/20156/30/2016 1,920,157.00YesConsulting1/15/20161/14/2017 225,000.00YesConsulting10/1/20156/30/2016 478,091.43YesSecurityGuard3/1/20161/31/2018 169,712.40YesConsulting7/1/20156/30/2016 199,999.00YesConsulting7/1/20156/30/2016 588,589.25YesSPB Compliance ReviewCalifornia Department of Education
VendorServicesContract DatesContractAmountJustificationIdentifiedNapa CountySuperintendent ofSchoolsConsulting2/1/20166/30/2017 999,058.18YesOrange CountySuperintendent ofSchoolConsulting7/1/20156/30/2016 477,736.85YesPublic WorksGroupConsulting10/1/201312/31/2016 385,277.50YesSacramento CityUnified SchoolDistrictConsulting7/1/20156/30/2017 467,655.30YesConsulting7/1/20156/30/2016 450,741.20YesTraining5/15/20156/30/2017 4,766,278.00YesSan JoaquinCountySuperintendent ofSchoolsConsulting7/1/20146/30/2016 257,935.93YesSanta ClaraCountySuperintendent ofSchoolsConsulting1/1/20166/30/2016 204,982.58YesThe Regents ofthe University ofCalifornia onBehalf of theBerkeley CampusConsulting7/1/20156/30/2016 954,800.00YesSacramentoCountySuperintendent ofSchoolsSacramentoCountySuperintendent ofSchools15SPB Compliance ReviewCalifornia Department of Education
ServicesContract 7/1/20156/30/2047 1,533,401.94YesConsulting1/1/20156/30/2016 243,828.86YesConsulting8/1/20156/30/2017 275,546.60YesIT Services7/1/20156/30/2017 896,313.00YesWestEdConsulting7/1/20156/30/2017 299,999.94YesWestEdConsulting7/1/20156/30/2016 599,338.73YesVendorThe Regents ofthe University ofCalifornia onBehalf of theDavis CampusThe Regents ofthe University ofCalifornia onBehalf of the LosAngeles CampusThe Regents ofthe University ofCalifornia, onbehalf of the SanFrancisco CampusTROMIKTechnologyCorporationFINDING NO. 4 – Personal lWhen a state agency requests approval from the DGS for a subdivision (b) contract, theagency must include with its contract transmittal a written justification that includesspecific and detailed factual information that demonstrates how the contract meets oneor more conditions specified in Government Code section 19131, subdivision (b). (Cal.Code Reg., tit. 2, § 547.60.)16SPB Compliance ReviewCalifornia Department of Education
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