On May 14, 2019, we posted an article entitled What is a Skelly Hearing? Created by the California Supreme Court in the landmark decision, Skelly v. Supreme Court, in 1975, public employees have long enjoyed the right to a “pre-deprivation” hearing before suffering discipline impacting their civil service position. This blog discusses strategies for employees to make the most of Skelly hearings.
Purpose of the Skelly Hearing
The public agency provides Skelly hearings to employees because they have to. It is a form of due process the California Supreme Court created to avoid any wrongful deprivation of an employee’s civil service right to his or her position. As the Supreme Court provides, the Skelly hearing must be conducted by an unbiased officer. It typically means someone who is not in the direct line of supervision of the employee. The Skelly officer has discretion to consider evidence or additional arguments and information presented and either uphold the proposed penalty or set it aside entirely, reinstating the employee without discipline.
While a public agency employer spends much time, effort, and energy into preparing a disciplinary action against a civil service employee, the Skelly hearing represents the final check and balance on the system. If a manager has a vendetta against an employee or false reports have been provided about the employee’s performance, a Skelly hearing should hopefully discover this and stop the disciplinary action. Of course, the effectiveness of the Skelly hearing depends not only upon the training and integrity of the Skelly officer, but also the diligence of the appealing employee.
Can the Employee “win” at a Skelly Hearing?
In Simas & Associates’ many years of experience in training Skelly officers, conducting Skelly hearings, and representing employees at Skelly hearings, nearly every time (in excess of 90%) the proposed discipline is upheld. So, then should an employee take a Skelly hearing seriously and prepare for it?
The answer is simple–because the Skelly officer can change the entire disciplinary action. At Simas & Associates, we always advise employees to take their Skelly hearing seriously while educating them on the slim chances of success. They are scheduled quickly after the notice of intended disciplinary action. So, employees and their legal counsel must be diligent in gathering, organizing, and presenting compelling evidence to the Skelly officer.
The best and most effective evidence is something new that the agency did not see before or did not take into account. A rehash of existing issues will not be effective. Blaming others or deflection will not work. The goal is to present serious new and compelling evidence that is well organized and broken down into digestible facts. No Skelly officer will spend more than an hour or two reviewing any case. So, time and organization are extremely important. The employee has to equip the Skelly officer in a short time to modify the discipline and to feel comfortable about doing so. This maximizes the likelihood of success. So “yes,” and employee can “win” at a Skelly hearing.
Skelly Hearing as Free Discovery
While an employee may waive a Skelly hearing, at Simas & Associates, we advise them not to do so for three reasons. First, as discussed above, with organizing compelling evidence, one never knows when they will move the Skelly officer to altering the adverse action or even adjusting the penalty. Second, a Skelly hearing, even if unsuccessful, is an important rehearsal of presenting defenses to the adverse action. In other words, losing a Skelly hearing in which the hearing officer upholds the discipline can still result in valuable important feedback on the argument the employee has to present. Finally, similar to the second reason, the Skelly officer is required to be unbiased and his or her feedback can be very helpful in ultimately preparing defenses to the adverse action.
To summarize, even though most Skelly hearings are unsuccessful in changing the disciplinary outcome, they are well worth requesting, taking seriously, and attending.
If you are an agency or a public employee that needs help with training and preparing your managers to serve as Skelly officials, or are a non-union managerial or professional public employee in need of legal representation at a Skelly hearing, please contact Simas & Associates at 888-999-0008 or info@simasgovlaw.com.