What exactly is a Skelly hearing?
A Skelly hearing gets its name from a California Supreme Court case called Skelly v. State Personnel Board (1975) 15 Cal.3d 194. The Skelly court held that a civil service or public sector employee has a property right to his job and could not be deprived of it without due process.
Although called a hearing, a Skelly hearing is better described as a pre-disciplinary due process meeting. This procedural meeting ensures that when an employee is facing disciplinary action, the accused 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 their employer before any actual disciplinary action. It is a preliminary meeting that must take place in the case of an employee’s termination, demotion, suspension, reduction in pay, or transfer with an accompanying loss in pay.
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How does a Skelly hearing differ from a normal hearing?
The Skelly hearing differs from a normal administrative hearing in that the process is usually simpler, faster, and less expensive than a typical hearing. It’s a process where no witnesses testify, and it typically requires very little paperwork and almost no discovery. However, a Skelly hearing must meet the requirements as outlined in the Skelly “Rights.”
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What happens during the Skelly hearing?
During a Skelly hearing, the accused employee and their legal representatives are present, along with the official proposing the discipline or a representative from the official’s office, someone from Human Resources or Employer Relations department, and the Skelly Review Officer. The Skelly Review Officer usually reads the Notice to those present and then allows the employee to respond to the allegations. After the proceedings, the most common outcomes from a Skelly hearing include:
- 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.
Preparing for your Skelly hearing
Your first opportunity to challenge the allegations against you will be at the hearing. This is also your chance to show your employer that you’re willing to change and improve. So, although you may not have much time to prepare, there are some things you should do in advance of the hearing.
If the allegations are untrue:
- Note the causes for discipline and their components.
- Identify the evidence given in the notice for each component in each cause for discipline.
- Identify any evidence that does not support any cause for discipline or is inconsistent from witness to witness.
- Make note of any language that demonstrates bias against you.
- Document any conflicts of interest between witnesses.
- Document any new or missing information that was not included in the notice that may contradict or refute causes for discipline.
If you accept the allegations but you think the punishment is too severe, consider the following:
- Was there a lack of progressive discipline on the underlying misconduct?
- Was there a lack of training on the underlying misconduct?
- Can you provide documentation of positive performance evaluations, commendations, promotions, raises or bonuses?
- Were there extenuating circumstances in your personal or professional life during the time of the allegations?
- Can you enroll in any training, programs or courses that address the alleged misconduct?
- What alternative forms of punishment would you consider more appropriate? Suspension, demotion, etc.
Even though the purpose of the Skelly hearing is to support the original disciplinary decision, taking the above actions will help you and your attorney if you decide to pursue an appeal or writ of mandate.
What are Skelly Rights?
Since the purpose of the Skelly hearing is to allow an employee facing disciplinary action the opportunity to state their case and share their side of the story, a set of minimum requirements – called “rights” – must be met. They are as follows:
- The employee must receive notice of the proposed discipline (a/k/a Notice of Adverse Action, or “Notice”);
- The Notice must identify the specific rule/policy that has allegedly been violated by the employee;
- The Notice must allege a factual basis for violation (i.e., “cause for discipline”);
- The Notice must be served with all documents that were relied upon by the official proposing the discipline;
- The Notice must provide a deadline for any response; and
- The Notice must include an effective date of discipline.
What is a Skelly Review Officer?
Being a “reasonably impartial and uninvolved” Skelly Review Officer is kind of like being a Switzerland of sorts – you may be employed by the same organization, but you’re not directly involved in the conflict. This means that you can provide a more objective perspective when it comes to employee appeals.
The Skelly Review Officer is responsible for determining whether the employee is likely to have committed the alleged misconduct, and whether that misconduct justifies the proposed punishment. The Skelly Review Officer does not make the decision about what discipline to impose, but rather decides whether there is enough evidence to support the discipline imposed. Specifically, the Skelly Review Officer does not hear all of the evidence as if it were a trial.
The role of the Skelly Review Officer is to provide a fair and objective hearing for employees who feel they have been wrongfully disciplined. This individual is not a judge, arbitrator, or mediator, but instead acts as a neutral party to ensure that employees’ rights are upheld during the Skelly hearing process.
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Have you received a Notice of Intent to Terminate or Demote but don’t know what to do?
Do not worry – many people have been in your position. A Skelly hearing may seem daunting, but it can be a relatively simple process that can help resolve your disciplinary matter quickly. If you are facing disciplinary actions and have been asked to appear at a Skelly hearing, contact Unlock Legal today or give us a call at your convenience at 949-988-4444. We routinely attend Skelly hearings in support of our clients, and we are ready to represent you. In the meantime, if you’d like to learn more about how you can prepare for your Skelly hearing, be sure to read the second blog in this two-part series discussing what to do before your Skelly hearing.