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Termination From Public Employment

In California, most employment is “at-will.” Either you or your employer may end the employment relationship with or without cause. However, if you are a public employee, “at-will” employment often does not apply. Many public entities may only terminate you for cause.

The United States Supreme Court has ruled that many public employees have a “property right” to their employment. Thus, under the Constitution, such property may only be taken away with “due process of the law.” Essentially, this means that your employer must make a case for terminating you and give you a chance to make your case otherwise. If you are a public employee facing termination, the skilled employment attorneys at Spencer Young Law can help ensure that you receive due process. We can fight for one of your most vital pieces of property: your job.

The California Supreme Court has also weighed in on this right. In Skelly vs. State Personnel Board, the Court established what procedures amount to due process. These procedures are therefore known as the Skelly hearing. The Skelly procedures revolve around two important principles: notice to the employee and an impartial hearing officer.

Notice

Your public employer must notify you, in writing, that it intends to terminate your employment or take other serious disciplinary action against you. They must tell you the date such action is to take effect. They must inform you of the reason for such discipline, including the specific rule or policy they believe you violated. They must allege specific facts to support their claim that you broke this rule, and provide you with any documents they are relying on to support their allegations. They must give you a deadline to submit your own response and schedule a hearing date. If they do not comply with these requirements, you are not receiving the due process to which you are entitled.

Example: Delilah works for Stanislaus County as a property assessor. The County Board of Supervisors receives an anonymous letter alleging that Delilah stole items from a private residential property she was inspecting. Because the allegations were so specific, the Board of Supervisors believes these allegations are true. The Board informs Delilah in writing that they will terminate her because she violated the rule against stealing. They allege specific facts, such as the date and time of the theft, the location, and the items stolen. However, they fear that relying on an anonymous letter will make the Board look bad, so they don’t provide it to Delilah. The Board has violated Skelly procedures by failing to provide Delilah with a document they are relying on in support of their allegations. Delilah has not received due process, as required.

Impartial Hearing Officer

Skelly requires that the hearing officer be someone who is reasonably impartial. While this will often still be an employee of the agency seeking to terminate you, it should not be the same person who investigated you, made allegations against you, or proposed the disciplinary action.

Example: Micky is a public school teacher. The school principal has reviewed surveillance video of Micky slapping a student. The principal gives Micky proper notice of intent to terminate him. Micky is provided with the video footage. He is notified of a hearing date, where the principal will be the Skelly officer. The principal is not “reasonably impartial” here, because he discovered the violation, made the allegations, and proposed the termination. He already “knows” Micky is guilty and is unlikely to reasonably consider Micky’s evidence or arguments.

The hearing officer must review the materials and evidence presented both by your employer and by you. Once they have done so, they will hold a hearing where you are allowed to bring a representative of your choosing. While this hearing has some similarities to a courtroom trial, it is much less formal, and your employer does not need to meet the same standard of proof as at trial. Your employer must convince the hearing officer only that there are reasonable grounds to find that you violated a rule or policy. Your employer must also convince the hearing officer that the proposed discipline is appropriate for the alleged policy violation.

These procedures are not perfect. A person accused of a crime receives more due process at their criminal trial. But these procedures don’t exist at all in the private sector. A private company which suspects its employee of wrongdoing is not required to share any evidence with the employee or listen to the employee’s rebuttal. You are at least guaranteed the opportunity to make your case, and the public employment lawyers at Spencer Young Law can help you make the most compelling case possible. Call Spencer Young Law today for a free consultation.

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