A Skelly hearing derives its name from Skelly v. State Personnel Board (1975) 15 Cal. 3d 194. Dr. Skelly, a permanent civil service employee, was terminated from his employment with the State of California. The California Supreme Court determined, among other things, that he was deprived of his due process right to pre-disciplinary discovery – the “materials upon which the action is based.” This ruling has since been expanded to include lesser disciplinary actions, such as dismissals, demotions and suspensions.
“Hearing” is actually misnomer. It is actually more appropriately described like a pre-disciplinary due process conference or meeting. A Skelly hearing ensures that an employee is informed of the allegations, has an opportunity to refute the allegations, and has an opportunity to mitigate the allegations or rehabilitate their standing with the employer prior to the imposition of any actual disciplinary action.
What are the Skelly Rights?
The minimum due process requirements include the following:
- Employee must receive notice of the proposed discipline (a/k/a Notice of Adverse Action, or “Notice”);
- Notice must identify the specific rule/policy that has allegedly been violated by the employee;
- Notice must allege factual basis for violation (i.e. “cause for discipline”);
- Notice must be served with all documents that were relied upon by the official proposing the discipline;
- Notice must provide deadline for any response; and
- Notice must include effective date of discipline.
What is a Skelly Review Officer?
The Skelly Review Officer must be “reasonably impartial and uninvolved” from the underlying facts and circumstances of the employee. However, they are typically still employees of the same public organizations; maybe just from a different unit.
The Skelly Review Officer is responsible for evaluating whether there are reasonable grounds for believing that the employee engaged in the alleged misconduct and whether the misconduct supports the proposed sanction. The Skelly Review Officer does not substitute his or her judgment with respect to the discipline to be imposed but rather reach a conclusion as to whether there are reasonable grounds to justify the discipline imposed. Specifically, it is not the function of the Skelly Review Officer to conduct a full trial-type hearing of all of the evidence.
So, while not a judge, arbitrator, or mediator, the Skelly Review Officer is the neutral with whom you exercise your Skelly hearing rights.
What is the Skelly hearing Like?
Those who typically attend the Skelly hearing include the employee being disciplined and their representative (i.e. union representative or attorney), the official proposing the discipline or a representative from the official’s office (and sometimes, an attorney representing the official or office), a representative of the Human Resources or Employer Relations department, and the Skelly Review Officer.
The Skelly hearing typically takes place relatively quickly after the issuance of the Notice. It depends upon the underlying public agency, but it can be as quick as five (5) days or thirty (30) days. Employees are encouraged to submit a brief in advance of the hearing addressing the Notice. The Skelly Review Officer has the responsibility to read the Notice, the materials upon which it is based, and any response submitted by the employee. This should take place before any actual “hearing” involving the employee. However, practice has indicated that not every Skelly Review Officer engages in the written materials much prior to the actual hearing.
At the Skelly hearing, the Skelly Review Officer typically starts by outlining his or her role. This includes explaining his or her limited authority to do much of anything. He or she then reads the main contents of the Notice aloud. Then the Skelly Review Officer may permit the employee (or their representative) an opportunity to make an opening statement in response to the allegations and the representative of the employing agency a chance to respond. Depending upon the Skelly Review Officer, he or she may only elect to take verbal statements from the employee instead of his or her representative.
Generally, no decision is given at the actual hearing. Rather, the Skelly Review Officer will notify the employing public agency in writing of his or her decision in writing. The typical outcomes are:
- Sustaining the allegations and level of discipline.
- Sustaining the allegations and reducing the level of discipline
- Requesting further investigation of the allegations based upon information provided by the employee.
Experience has shown that the report is typically incredibly skeletal. Although Skelly Review Officers should describe the charges, what was reviewed, who was present for the Skelly Hearing, what was discussed at the Skelly Hearing, the Skelly Review Officer’s conclusion and the factual and analytical reasoning behind that conclusion, that rarely happens. Rather, it is typically one sheet of paper informing the employing agency of his or her conclusion.
Make the Most of Your Skelly hearing
This is your first opportunity to challenge the underlying allegations. This is also your first opportunity to mitigate the potential or prospective harm or rehabilitate yourself with your employer. So, although you do not have much time to prepare for it, there are some minimum things you should do in advance of the hearing. For example, if you seek to refute the allegations:
- Identify the causes for discipline and their elements.
- Identify the evidence in the Notice that supports each element for each cause for discipline.
- Identify the evidence in the Notice that does not support any element, contradicts any of the causes for discipline, or is inconsistent from witness to witness.
- Identify passages in the Notice that demonstrate negative bias against you.
- Identify conflicts of interest between witnesses in the Notice.
- Identify new information, outside of the Notice, that was not discovered during the investigation that does not support or contradicts causes for discipline.
In the alternative, if you believe the allegations are correct but the form of discipline is unduly harsh:
- Identify the lack of progressive discipline on the underlying misconduct.
- Identify the lack of training on the underlying misconduct.
- Gather performance evaluations, commendations, promotions, raises, and bonuses.
- Identify any personal, health, social, financial, or family issues that you were going through at the time of the alleged misconduct, and documentation to support.
- Identify and engage in appropriate training, courses, or community service that addresses the alleged misconduct.
- Identify the form of discipline or alternatives that you would consider (i.e. suspension, demotion, last change agreement, etc.).
Even though the Skelly hearing is geared towards supporting the original reasoning and form of discipline, taking the above actions will be helpful for you and your attorney in the event you seek to pursue an appeal or writ of mandate regarding the underlying discipline.
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