What is a Skelly Hearing?

A Skelly Hearing is a pre-disciplinary hearing named after a 1975 California Supreme Court case which solidified public employees’ rights when faced with disciplinary action. A Skelly Hearing is part of due process to provide public employees with the reason for disciplinary action before that action is taken. Public employees are given notice of allegations against them and have the opportunity to respond by refuting the allegations or proposing an alternative remedy or discipline. Skelly Hearings were originally only given before job termination, but they have since expanded and it is common to have a Hearing before many disciplinary actions. If you have received a Notice of Adverse Action, consider contacting an employment attorney at Spencer Young Law in Oakland. We have helped public employees with many such hearings.

A Notice of Adverse Action is the document a public employer is required to give to an employee providing information on the allegations against them. They must give notice of the following: 1) what adverse action is planned, 2) what rule violation(s) it is based on, 3) what evidence is being used to show that you violated the rule(s), 4) the date you must respond by, and 5) the date the proposed adverse action is planned to take effect.

A Skelly Hearing is an opportunity to protect yourself from allegations, challenge proposed disciplinary action, and restore your reputation with your employer. They are given without a lot of notice, but here are ways you can prepare for a Hearing and fight the proposed discipline.

If you believe the allegations themselves are false, some key elements to focus on in the Notice are as follows:

1. the stated causes for action (reasons for discipline) and their separate elements,
2. evidence stated to support each element for each allegation,
3. evidence that contradicts or does not support the allegations, and inconsistencies in the notice, and
4. elements of the notice which suggest any prejudice against you.

Some key things to think about from your knowledge of events related to the notice:

1. conflicts of interest for any parties in the Notice,
2. other information not stated in the Notice which may refute or contradict the grounds for discipline.

If the allegations in the notice are true, but you believe the proposed discipline is overly harsh, focus on ways you were not given appropriate resources or training on the situation, and your good standing. Some examples are:

1. lack of previous discipline,
2. lack of training relating to the rule violation,
3. positive feedback on performance such as bonuses, evaluations, raises, and promotions.

You can also suggest other ways to rehabilitate yourself or receive discipline that are more appropriate than the proposed action. These could be trainings or classes related to the allegations, relevant community service, or alternative disciplinary action such as a last chance agreement or demotion.

Skelly Hearing is done in front of a Skelly Review Officer – a neutral third party, often chosen from a different part of the same organization. This Officer is supposed to hear both parties and assess the allegations, evidence, and proposed discipline. They are not a judge and do not need to replicate a trial, but they do need to hear both sides.

Other typical attendees of a Skelly Hearing are the party proposing discipline (and sometimes their Lawyer), the party being threatened with discipline, usually a lawyer or at least Union Representative for the threatened party, and a representative of the organization’s Human Resources or equivalent department.

Hearings usually occur quickly, typically one week to one month, after notice is given. Employees can and usually should submit a written response or brief before hearing making their case to the Skelly Officer. The Officer is responsible for reviewing all documents submitted regarding the hearing, although they don’t always do so before the Hearing, so this helps show and remind the Officer of the employee’s defense.

In the Hearing itself the Skelly Review Officer typically starts by outlining their role and making it clear that the only thing they can judge is whether it’s reasonable to believe a policy was violated, and whether that violation is grounds for the type of discipline planned. They then read the key parts of the Notice of Adverse Action, and often permit the employee or their representative to answer the allegations. Sometimes the Officer will only allow the employee themselves to answer allegations verbally.

The Officer’s decision is usually given in writing as a Skelly Report to the public agency in question sometime after the Hearing and not given at the Hearing itself. The decision is usually to either uphold the allegations and the level of discipline, uphold the allegations but decrease the discipline, or to request further investigation of the allegations due to information provided by the employee in question.

A Skelly Report is often a single page documents simply informing the agency of the Skelly Review Officer’s decision, although they are supposed to be more robust. They are supposed to include not only the decision, but also the reasoning for that decision, details of the allegations, a list of attendees, and what was discussed in the hearing. However, often these details are omitted.

Skelly hearings are skewed toward the reasoning and discipline originally proposed but preparing for your hearing and challenging the discipline can help you pursue an appeal or writ of mandate on the action.

If you are facing a Skelly Hearing and have questions, call an employment lawyer at Spencer Young Law. We are here to help. We usually charge a flat fee for representation for Skelly hearings. The fee includes reviewing all documentation, preparing you for the hearing, attending the hearing, and holding a post-hearing conference on next steps.