Most California public employees have what is known as a constitutionally protected “property” interest in continued employment, once and if they successfully complete their probationary period in the position. This can make the already difficult decision to impose “significant” discipline, up to and including terminating an employee for cause, even more complex for public agencies looking to balance considerations of fairness, constitutionality, and agency operational needs. Imposing significant discipline on an employee with a property interest in the employee’s position requires an agency to provide pre-discipline and post-discipline “due process”— generally, the opportunity to be heard within a reasonable time and in a meaningful manner. Failure to provide due process protections can result in a disciplinary action being reversed or civil actions being filed against the agency.
Pre-Discipline (Skelly) vs. Post-Discipline Due Process Rights
The requirements for pre-discipline and post-discipline due process are distinct. The legal floor for pre-discipline due process that an employer must provide, as well as best practices and strategies for ensuring that a disciplinary termination is upheld, require,
(1) A written notice of intent to impose significant discipline,
(2) A reasonable time for the employee to respond,
(3) The opportunity for a Skelly conference before an appropriate “Skelly Officer,” and
(4) A final notice of discipline.
These procedural safeguards are commonly referred to as “Skelly rights” after the 1975 California Supreme Court case Skelly v. State Personnel Board. There, the Court found that a plaintiff employee was denied due process when he was terminated, without the above safeguards, for misconduct for which he had been repeatedly counseled, reprimanded, and even suspended. In addition to these Skelly rights, agency rules, memoranda of understanding (MOUs), or collectively bargaining agreements (CBAs) may provide additional due process protections to employees.
Post-discipline or termination due process requires the opportunity for an evidentiary appellate hearing, with procedural safeguards that generally present more like a civil trial. During the hearing, the employer bears the burden of proving the charges against the employee by a “preponderance of the evidence” (i.e. greater than 50%, more likely than not). At the conclusion of the hearing, or shortly thereafter, the hearing officer or decision-making body will typically issue a detailed written decision explaining their findings on the sufficiency of the evidence and the appropriateness of the level of the discipline.
In the absence of agency rules or MOU provisions to the contrary, Skelly pre-disciplinary due process does not apply unless the level of discipline is “significant.” Generally, discharges, suspensions, demotions, and disciplinary reductions in pay are considered “significant.” However, warnings (verbal or written) and reprimands are usually not considered “significant.” Additionally “improvement needed” ratings in performance evaluations, denial of merit increases, counseling sessions, and releases during probation do not require Skelly procedures either (because they are not considered to be discipline).
Case authority suggests that, unless there is an agency rule, MOU, or practice to the contrary, suspensions of fewer than five days would not trigger the Skelly procedures, as long as the Skelly rights can be afforded during the suspension or within a reasonable time thereafter. However, notwithstanding such authority, there is risk in not using Skelly procedures before imposing discipline whenever the proposed discipline involves a loss of pay, including suspensions of fewer than five days.
Best Practices for Pre-Discipline Due Process (Skelly Proceedings)
Ensuring compliance with an employee’s Skelly rights and relevant agency policy or MOU/CBA provisions is the minimum to which an agency must adhere when imposing significant discipline on an employee. However, in addition to such minimum requirements, implementing disciplinary best practices will help protect your agency from challenges to your agency pre-discipline processes, which could result in overturning a disciplinary decision during a post discipline appeal hearing.
- Adhere to the Principle and Practice of Progressive Discipline, and Document Thoroughly. More often than not, the events which lead to imposition of significant discipline begin long before Skelly rights manifest. Documentation of disciplinary actions taken before significant discipline serves as the evidentiary foundation in the event an agency needs to later issue a notice of intent to impose significant discipline. Critically, thorough and constructive documentation give employees the best opportunity to correct course, potentially removing the need for more significant discipline and Skelly procedures at all. While there are of course situations that may necessitate an agency’s need to forego progressive discipline, such situations should be considered exceptions, and not the rule.
- Be Fair and Transparent. When delivering the notice of intent to impose significant discipline, ensure that the letter is thorough but concise, and lacks ambiguity. The notice of intent (and final notice) should list and include as exhibits all the materials the agency relied upon in making its recommendation for the proposed discipline.
Additionally, the notices and level of discipline should be fair in light of agency past practices and procedures. Employee discipline is often reviewed by a hearing officer or governing body in light of whether employees in similar situations received the same level of discipline. Fairness may also be judged by whether an agency follows its rules, including applicable deadlines.
- Ensure Consistency Between the Notice of Intent and the Final Notice of Discipline. Additional charges that were not included in the notice of intent should not be added to a final notice of discipline after the Skelly conference; otherwise, a new Skelly conference will be required. If newly discovered evidence is gathered supporting new charges, then the new charges and supporting evidence should be included in a new or amended notice of intent and the employer must provide the employee with the right to another Skelly
- If an Employee Elects a Skelly Conference, Pick an Appropriate “Skelly ” A Skelly conference is a meeting at which an employee has the opportunity to tell their “side of the story” or to offer any mitigating factors they believe the decision maker should consider before the discipline is finalized. Its purpose, according to the courts, is to minimize the risk of the employer making an error in the action it takes. It is important to remember that the Skelly conference is not an evidentiary hearing. While a Skelly conference is primarily for an employee’s benefit, management can and should use the meeting as a tool to determine the strength and weaknesses of the charges; ascertain the true defenses available to the employee; and avoid surprise in the event of post-discipline appeal.
If an employee elects to have a Skelly conference, an agency should consider carefully who may be the best person to serve as the “Skelly Officer.” While the Skelly Officer should be “reasonably impartial,” and not involved in the underlying action, courts have found that it is not a violation of due process for a manager who conducted an underlying investigation to serve as the Skelly officer. Additionally, the Skelly officer should:
a. Consider making a record of the Skelly meeting/conference by audio taping it;
b. If the employee does not reveal the information on their own, consider asking questions to ascertain: (1) whether the employee denies the commission of any of the alleged conduct; and (2) the full range of defenses that the employee may be claiming, including the existence of past practices adverse to management, claims of disparate treatment, and (particularly if the employee is represented by counsel) any legal impediments to the imposition of discipline; and
c. Get the names and contact information of all witnesses who would corroborate the employee’s position.
- Become Familiar With, and Adhere to, Applicable Procedures and Time Limits in Your Agency’s Policies, MOU, CBA, or Statutes. For example, an agency has 30 days after deciding to impose discipline to serve a firefighter or police officer with a final notice of discipline. Or, discipline of academic employees of a community college district must be commenced within four years, and of classified employees within two years, of the conduct that forms the basis for the disciplinary action.
As a best practice, an agency should serve the final notice of discipline within 30 days after the Skelly meeting/conference. Doing so will avoid any dispute as to whether the agency timely served the final notice. Some agencies also have their own rules (e.g., personnel rules or MOU or CBA provisions), which contain specific time limits for service of disciplinary documents.
- Know What Kinds of Disciplinary Actions Trigger Due Process Requirements. As explained above, Skelly rights only attach to “significant” discipline. When in doubt as to whether a certain level of discipline triggers such protections, examine relevant agency rules, MOUs, or CBAs, and check with your legal counsel.
Authors: Alysha Stein-Manes and Nathan J. Price