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Discipline and Workplace Rights*
(updated 11/13/09)

What is a Skelly hearing?

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Discipline and Appeals

What's a Skelly Hearing?

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A Skelly hearing derives its name from Skelly v. State Personnel Board (15 Cal. 3d 194) in 1975. Dr. Skelly, a public 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.” A Skelly hearing allows an employee to respond to the allegations prior to the imposition of any actual disciplinary action. For City of San José employees this only applies to formal discipline (for non-sworn Police Department employees covered by the Police Duty Manual, this includes LORs).

What is a Skelly hearing?

  • A pre-imposition opportunity to respond to the proposed discipline
  • An opportunity to refute factual allegation(s)
  • An is opportunity to mitigate severity of penalty

Attendees at a Skelly hearing:

  • the Department Director or designee
  • the Division Manager (optional)
  • a representative from the Office of Employee Relations
  • a representative from the City Attorney’s Office (if applicable – always in dismissal cases)
  • the employee being disciplined
  • the employee’s union representative or attorney

Due process prerequisites:

  • Must have received notice of proposed discipline
  • Notice must allege specific rule/policy violation
  • Notice must allege factual basis for violation
  • Notice must be served with all documents that were relied upon by the proposing official
  • Notice must provide deadline for response
  • Notice must include effective date of discipline

Refuting the factual allegations in a Skelly hearing:

  • Best to bring new information not discovered during internal investigation
  • Look for investigative conclusions that are simply not supported by the evidence
  • Highlight inconsistencies from witness to witness or from statement to statement by the same witness
  • Seek to delete editorial comments

Mitigating the level of penalty in a Skelly hearing:

  • Discuss prior discipline history
  • Discuss progressive discipline if appropriate
  • Discuss performance evaluations
  • Discuss commendations
  • Discuss tenure
  • Discuss any personal issues that may have contributed to the misconduct, e.g., divorce, death, health, PTSD, burnout, etc.
  • Discuss alternatives
  • Discuss last chance agreements/demotion

Skelly hearing outcome:

  • Generally no decision will be at the Skelly hearing. Ideally, the City will consider all the information and make a final decision as soon as possible
  • Potential outcomes of a Skelly hearing:
    • an additional investigation based upon the employee’s statements (this is not likely to occur)
    • sustaining the level of discipline
    • reducing the level of discipline
    • a settlement agreement (see What’s a settlement agreement? for more details)

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Created 13 November 2009 • Modified 5 December 2009