600. Positions Exempt From Civil Service

Introduction

Definition

Under Article VII of the State Constitution, all State officers and employees must be in the civil service unless specifically exempted in Section 4 of that article. The article reads:

SECTION 4. The following are exempt from civil service:

  • a. Legislative officers and employees.
  • b. Judicial Branch officers and employees.
  • c. Elected officials plus a deputy and an employee selected by each elected officer.
  • d. Members of boards and commissions.
  • e. A deputy or employee selected by each board or commission.
  • f. State officers appointed by the Governor or the Lieutenant Governor.
  • g. A deputy or employee selected by each officer under Section 4(f).
  • h. University of California and California State College officers and employees.
  • i. Teaching staff of schools under Department of Education—or the Superintendent of Public Instruction Jurisdiction.
  • j. Member, inmate, and patient help in State homes, charitable or correctional institutions, and State facilities for mentally ill or retarded persons.
  • k. Members of the militia while engaged in military service.
  • l. District agricultural association officers and employees, employed less than six months in a calendar year.
  • m. In addition, the Attorney General may appoint or employ six deputies or employees, the Public Utilities Commission may appoint or employ one deputy or employee, and the Legislative Council may appoint or employ two deputies or employees.

Appointing Authority

The letter of the paragraph under Article VII, Section 4 of the State Constitution (see above) which specifies the appointing power of an exempt position is referred to as the appointing authority. Thus, an appointee of the Governor is sometimes referred to as an “F” appointment. An appointee of an “F” is a “G.” A member of a board or commission is referred to as a “D” appointment, and an appointee of a board is an “E,” and so on.

Entitlement

The code section in the law specifying that an appointment may be made is referred to as the exempt entitlement. For example, Government Code Section 19815.3 states “With the consent of the Senate, the Governor shall appoint, to serve at his pleasure, an executive officer who shall be director of the department [of Personnel Administration].” Therefore, GC Section 19815.3 is the exempt entitlement or law that allows the Governor to appoint the Director. The appointment authority is “F” because the Governor is making the appointment. In the Exempt Pay Scale, the Authority/Entitlement would be listed as “F/GC19815.3.” Under the Constitution, the “F” appointee would be authorized to make a “G” appointment and both would share the same entitlement.

The Creation of Additional (or New) Exempts

New authorizations to appoint additional exempts may be created in several ways.

  • A new or revised law may authorize the Governor to make additional appointments.
  • The Governor may convert a vacant civil service position designated managerial in a line agency under the Governor’s direction to an exempt position. Government Code Section 12010.6 discusses this authority and its limitations. Since the Governor would be making the appointment, the appointee would be exempt under Section VII 4(f). These are referred to as “converted positions.”
  • A revision to the State Constitution may add new authorizations.

GC Section 12010.5

“G” exempt entitlements may be redistributed among executive agencies.

GC Section 12010.5 allows the Governor to redistribute the appointments made under Section VII 4(g) among executive agencies. These are sometimes referred to (albeit incorrectly) as “borrowed” or “loaned” positions. These positions are not new to State service but are new to the receiving agency.

Exempt Position Requests

The Exempt Position Request form was designed to provide the Governor’s Office and DPA with the information needed to process the paperwork associated with an exempt appointment. Part I is filled out by the requesting department, sometimes at the request of the Governor’s Appointments Unit, and includes:

  • (Section 1.a.) Appointee Information:
    • Name
    • Proposed Appointment Date
    • Proposed Salary
    • Proposed Salary Range and Level
  • If the appointee is a Current State Employee:
    • Class code of the classification to which currently appointed
    • Current salary rate
    • Current employing department
  • (Section 1.b.) Exempt Pay Scale Information:

    Current Exempt Pay Scale information must be filled in if an existing exempt classification is being used. If the position’s duties and responsibilities are changing (thus requiring the title and salary to be changed) the proposed changes must be listed. If a new classification is being created for a new entitlement, only the proposed information should be filled out, and the appropriate new exempt class box should be checked. Schematic and class codes are assigned by DPA. Changes in this section will require an exempt pay letter to be issued to the State Controller in order to change the Exempt Pay Scale.

  • Routing

    The EPR should be signed and sent forward to the department’s agency for approval (if appropriate) and then to the Governor’ Office, Appointments Unit. A duty statement and organization chart must be attached as part of the package. A copy of the package must be sent to the DPA Exempt Unit at this time. Upon review and approval by the Governor’s Office, the EPR only will be forwarded to DPA. Constitutional Officers’ requests should be forwarded directly to DPA’s Exempt Unit.

An Overview of the Exempt Approval Process

The following is a summary of the exempt appointment and salary process:

The Governor’s Office reviews candidates proposed by the agency and/or candidates who are in the Governor’s Office applicant file. When an acceptable candidate is approved, the responsible executive (agency secretary or department director) is notified of the approval and must, in turn, notify the personnel officer so that the necessary transactions can take place to put the appointee on the payroll.

  1. The personnel office forwards the Exempt Position Request (EPR), duty statement, and organization chart through the agency (if appropriate) to the Governor’s Office, Appointments Unit. At the same time, a complete copy is sent to the Department of Personnel Administration (DPA) Exempt Unit.
  2. The Appointments Unit reviews the EPR and determines whether the information on the appointee is correct. The approved EPR is forwarded to DPA.
  3. DPA prepares an Exempt Pay Letter if a change to the Exempt Pay Scale is necessary. The department is sent a copy with the approved EPR attached.
  4. DPA returns a copy of the approved EPR to the department if no Pay Letter is necessary.
  5. DPA forwards a copy of the Pay Letter to the State Controller’s Office (SCO) to update SCO system/pay scales so appointment can be processed.

The EPR’s for appointees of other Constitutional (Elected) Officers are reviewed only by the DPA Exempt Unit.

The Appointment Process

Per instructions from the Governor’s Office Appointments Unit, the following procedures should be followed for the appointment of all exempt positions in executive branch organizations, including both gubernatorial (F) and director (G) exempt personnel:

  1. The Governor’s Office, Appointments Unit maintains names, applications, and resumes of individuals interested in working for the administration. When you need to fill an exempt position, the Appointments Secretary or Deputy Appointments Secretary assigned to your organization must be consulted to determine if the Governor’s Office has candidates who should be considered for the position.
  2. Cabinet members and/or department directors shall be primarily responsible for interviewing candidates for exempt positions. The Chief of Staff, Appointments Secretary, or Deputy Appointments Secretary may also choose to interview a prospective appointee.
  3. After conducting interviews and selecting the candidate or candidates you wish to recommend, send a memorandum to the Governor’s Office, Appointments Unit. The memorandum should include pertinent information that is not necessarily included on the candidate’s application or resume. Please include the names and identifying information (including the names of recommending individuals whose opinions you believe the Governor may value) of those candidates who were not selected.
  4. The Appointments Unit will notify the responsible agency secretary and/or department director as to whether the candidate meets with the Governor’s approval. Again, even persons recommended for appointment to agency secretary/department director’s (“G”) positions must be reviewed and approved by the Governor’s Office.
  5. The agency secretary/department director should then notify the appropriate personnel officer to begin the process of placing the appointee on the payroll.
  6. The appointment of an exempt candidate as a Special Consultant while pending appointment or approval by the Governor’s Office is strictly forbidden without approval from the Director of DPA. Such an appointment results in the individual performing the duties of the exempt position prior to the exempt appointment. If not appointed, the individual must be released from State service and may not have a job to return to.

Converted Exempt Entitlements

The power to select key administrative personnel is an invaluable tool and resource by which the Governor may ensure that his or her policies and programs are being effectively carried out by individuals in whom the Governor has personal confidence. Given the limited number of exempt entitlements, it is imperative that no conversions either to or from exempt status be undertaken or sought without the written, verbal, and/or prior approval of the Appointments Secretary.

Boards and Commissions

There are over 400 boards and commissions, many of which are contained within agencies and departments. The Appointments Unit will process and review applications for such positions before making recommendations to the Governor. The input of agency secretaries and department directors may be sought and, of course, shall be duly considered.

Appointments Records and Applications

All persons who are recommended for appointment to either exempt positions or boards and commissions should submit their original applications to the Governor’s Office, Appointments Unit. Abstracts of information contained on applications may be produced for review by agency secretaries and department directors upon request.

The Conversion Process

This process is provided for by GC Section 12010.6 and is available to line agency departments only (i.e., departments whose directors are directly appointed by the Governor. Boards, commissions, and departments headed by elected officials are not eligible to use this process).

The department must identify a vacant position that has been designated managerial by DPA or have a vacant position that DPA can legitimately reclassify to a managerial class. Once the position is identified, the regular appointment process is followed. The EPR must indicate that a new exempt class is being proposed based on the conversion of a vacant civil service managerial position and the position number of the civil service class must be included.

If a department wishes to return an exempt position to civil service, approval must be obtained from the Governor’s Office. The Governor’s Office and DPA will determine whether the exempt class used by the position should be abolished or inactivated on a temporary basis. In no case may the exempt class be used after the position has returned to civil service unless a new conversion is approved or, if the return was temporary, until the Governor’s Office is notified and DPA reactivates the exempt class.

Modified Classification Review (MCR)

DPA has discontinued the use of the MCR process for exempt classes. All exempt appointments must be approved by the Governor’s Office (except appointees of other elected officials) and are therefore the equivalent to NO MCR. The MCR notation is NONE. The only exceptions are classifications used in the Governor’s Office, which are MCR I. All appointments require that the Exempt Position Request (EPR) be filled out.

Classification and Salary Setting

GC Section 19825 states:

“(a) Notwithstanding any other provision of law, whenever any state agency is authorized by special or general statute to fix the salary or compensation of an employee or officer, which salary is payable in whole or in part out of state funds, the salary is subject only to the approval of the department before it becomes effective and payable. . . (b) The Legislature may expressly provide that approval of the department is not required.”

DPA carries out its responsibilities when it receives the Exempt Position Request, duty statement, and organization chart. Salary issues are resolved with the Governor’s Office Appointments Unit if necessary, and an Exempt Pay Letter is sent to SCO when a change in the Exempt Pay Scale is needed. If requested by the Appointments Unit, DPA will review the duties and responsibilities of the position. The review would be similar to the analysis done on a civil service position. For the most part, exempt classes are assigned to one of the existing exempt salary levels (Attachment 3). In some cases, particularly for lower level positions, a direct salary tie is made to civil service classes. Exceptions may be made depending on individual circumstances. DPA may ask the department for additional information based on the criteria below.

General Criteria Used in Analysis

Degree of Authority (set priorities)

  • Establish and implement statewide policy.
  • Establish and implement departmental policy.
  • Review and approve programs for other jurisdictions.
  • Establish rules.
  • Adjudicate claims; hear and dispose of appeals.
  • Have regulatory and/or compliance function (institute disciplinary civil and/or criminal actions).

Scope of Responsibility (as demonstrated by)

  • Scope of programs (# of programs, # of elements, and variety of programs).
  • Impact of program (population affected, public service, protection, or licensing).

Sensitivity of Programs

  • Legislative interest.
  • Advocate group interest.

Staff

  • Department size.
  • Professional/clerical.

Budget (administer funds)

  • Federal (flow through) percentage.
  • State or other percentage.

Complexity

  • Takes into consideration all of the above with particular emphasis placed on the departmental and statewide policy setting and implementation authority.

Other

  • Legislation introduced.
  • Advisory.
  • Informational.