Section 243.5 - Right to Respond; Right to Appeal(a) When the Department determines that an appointment is unlawful and should be voided, the Department shall, prior to taking any action in accordance with section 243.2, subdivisions (a) or (b), provide written notification to the appointing power and affected employee(s) of the intent to void the appointment, and shall provide the appointing power and affected employee(s) the right to respond, either verbally or in writing, within 15 calendar days of the date of the Intent to Void Notice. The 15-calendar day notice period may be extended an additional 15 calendar days upon a showing of good cause. For purposes of this section, "good cause" means a substantial and compelling reason allowing the appointing power or affected employee(s) to be given additional time to respond. The Intent to Void Notice shall inform the appointing power and affected employee(s) of the specific facts and reasons supporting the Department's determination that the appointment is unlawful.(b) The Department shall review and consider the responses from the appointing power and/or affected employee(s). If the Department determines that the appointment is unlawful, the Department shall provide a Final Determination of Voided Appointment to the appointing power and affected employee(s) informing them of its determination. The Final Determination of Voided Appointment shall include: the specific facts and reasons supporting the Department's determination to void the appointment; the effective date upon which the appointment is deemed voided, which shall be no earlier than the date the employee is provided the Final Determination of Voided Appointment; the estimated amount of reimbursement ordered; and the employee's right to file an appeal with the Board or Executive Officer challenging the voided appointment, including the amount of any reimbursement ordered pursuant to section 243.3, subdivision (c).(c) The Department shall not void any appointment where the effective date of the voiding occurs more than one year after the effective date of the appointment. In those instances where the effective date of the voiding would have occurred more than one year after the effective date of the appointment, the Department may submit a request to the Board or Executive Officer to void the appointment, provided the Department has determined that either the appointing power and/or the employee did not act in good faith when offering and/or accepting the appointment. Any such request to the Board or the Executive Officer shall include the Department's Intent to Void Notice required by section 243.5, subd. (a), any response received from the appointing power and/or the employee, and a statement setting forth all applicable facts and reasons supporting the Department's determination that the appointment was unlawful and not made and/or accepted in good faith. The Department shall provide a copy of the request and all supporting documents to the appointing power and affected employee(s). (d) After having reviewed a request to void an unlawful appointment filed by the Department, the Board or Executive Officer shall issue a final decision concerning the voided appointment and neither the employee, Department, or appointing power shall have any further right of appeal or response, except as is set forth in section 243.6. Where the Board or Executive Officer's final decision orders an appointing power to void an appointment, the Board shall notify the Department, the appointing power, and the affected employee(s) of the decision, and the appointing power shall be required to take all necessary steps to void the appointment within five working days of the issuance of the final decision. Nothing in this section shall preclude the Board or Executive Officer from conducting any additional investigation or hearing it deems necessary to reach a just decision concerning the voided appointment.(e) When the Board or Executive Officer determines, as part of its own independent investigation or hearing, that an appointment is unlawful and must be voided, prior to taking any action in accordance with section 243.2, subdivisions (a) or (b), the Board or Executive Officer shall provide written notification to the Department, the appointing power and the affected employee(s) of the intent to void the appointment and shall provide the Department, the appointing power and the affected employee(s) the right to respond within 15 calendar days from the Intent to Void Notice. The 15-calendar day notice period may be extended an additional 15 calendar days upon a showing of good cause. For purposes of this section, "good cause" means a substantial and compelling reason allowing the appointing power or affected employee(s) to be given additional time to respond. The Intent to Void Notice shall inform the Department, the appointing power and affected employee(s) of the specific facts and reasons supporting the Board or Executive Officer's determination. After receiving and considering all responses from the Department, the appointing power and/or the affected employee(s), the Board or Executive Officer shall issue a final decision concerning the matter and neither the Department, appointing power, or employee shall have any further right of appeal or response, except as is set forth in section 243.6. Where the Board or Executive Officer's final decision orders the employee's appointment be voided, the Board shall notify the Department, the appointing power, and the employee of the decision, and the appointing power shall void the appointment within five working days of the issuance of the final decision.(f) Appeals challenging a voided appointment shall be limited to 15 pages, except upon a showing of good cause, and state all applicable reasons and legal bases supporting the appeal. (1) Upon receipt of an appeal challenging a voided appointment, the Board or Executive Officer shall provide the Department and/or the appointing power with a copy of the appeal and all supporting documents received with the appeal and shall provide the Department and/or the appointing power a right to respond to the appeal. Any such response to the appeal shall be filed with the Board or Executive Officer within 30 days of the date the notice of appeal was issued to the Department or appointing power and state all applicable reasons and legal bases supporting the decision to void the appointment.(2) After having reviewed and considered any appeal and response(s) filed by the employee, Department, and/or appointing power, the Board or Executive Officer shall issue a final decision concerning the voided appointment and neither the employee, Department, or appointing power shall have any further right of appeal or response, except as is set forth in Section 243.6. Nothing in this section shall preclude the Board or Executive Officer from conducting any additional investigation or hearing it deems necessary to reach a just decision concerning the voided appointment.Cal. Code Regs. Tit. 2, § 243.5
Note: Authority cited: Sections 18502 and 18701, Government Code. Reference: Section 18670, Government Code.
Note: Authority cited: Sections 18502 and 18701, Government Code. Reference: Section 18670, Government Code.
1. New section filed 4-2-2018; operative 7/1/2018. This regulatory action is exempt from the Administrative Procedure Act and OAL review pursuant to Government Code section 18211. Submitted to OAL for filing and printing only (Register 2018, No. 14).
2. Amendment filed 8-22-2022; operative 10/1/2022 (Register 2022, No. 34).
3. Amendment of section heading and repealer and new section filed 8-1-2024; operative 8/1/2024 pursuant to Government Code section 11343.4(b)(3) (Register 2024, No. 31).