The Skelly Hearing
What is a Skelly hearing?
The Skelly hearing is part of the due process rights required in California. Permanent public employees are entitled to certain procedural safeguards before any serious discipline can be imposed. A Skelly hearing ensures that the employer provides the employee with the following:
- Notice of the proposed disciplinary action;
- The reasons for the proposed disciplinary action;
- A copy of the charges and material upon which the proposed disciplinary action is based; and
- The right for the employee to respond, either verbally or in writing, to the employer issuing the discipline.
Why is there a Skelly hearing?
The terminology involved in this process emphasizes Skelly’s most important purpose – to avoid significant errors that would unfairly deprive employees of their livelihoods. The initial notice, called a “NOTICE OF PROPOSED DISCIPLINE,” proposes, rather than imposes, discipline. It triggers a process (called “due process”) in which employees can review the charges and evidence against them, so they can have an opportunity (not a duty, but an opportunity) to present “their side of the story” and to point out any alleged errors or other reasons why the proposed discipline should not be imposed. This opportunity to respond is the part of due process called the Skelly hearing.
Missteps in providing due process rights can have grave consequences, including requiring employers to rescind the discipline imposed and to return the employee to work with back pay pending proper completion of the Skelly process.
Who is entitled to a Skelly hearing?
Employees entitled to the Skelly process, including a hearing, are non-probationary for cause employees, including the following:
- Represented Employees: employees in which a CBA governs the employment relationship; and
- Non-Represented Employees: employees in which the Personnel Policies for Staff Members (PPSM) govern the employment relationship such as Professional & Support Staff and Analysts. These “for cause” employees are entitled to the Skelly process because the employment relationship with the University provides that they may be terminated (or receive serious discipline) only for good cause.
At-will, probationary, and temporary employees, including Senior Management Group, Manager and Senior Professional (MSP) are NOT entitled to a Skelly process or hearing. The PPSM governs the employment relationship. For these employees the University provides a “Skelly-like” process.
Who oversees a Skelly hearing?
A Skelly Reviewer oversees the hearing. The Skelly reviewer must meet two requirements:
- Reasonably impartial/non-embroiled (not involved): The Skelly Reviewer should be an individual who is reasonably impartial and not involved in the matter concerning the employee. True neutrality would require a person not associated with, or paid by the University. The reviewer should be someone from another department, with no history of conflict with the employee, and not involved in the discipline or any other part of the matter involving the employee.
- Level within the organization: The Skelly reviewer should be an individual at the University who has the experience and authority to evaluate the appropriateness of the proposed disciplinary action and make a recommendation about upholding, modifying, or revoking the proposed discipline. Skelly Reviewers should be at the same level or above as the disciplinary authority.
What is the timeline of a Skelly hearing?
Each step of due process has its own timeline associated with it leading up to the Skelly hearing. The Skelly hearing can take place anywhere between 5 and 30 days following the notice of proposed disciplinary action. Once the Skelly hearing takes place, the Skelly reviewer will respond within a reasonable time period not more than 30 days.
What are the outcomes of a Skelly hearing?
There are two main outcomes of a Skelly hearing after the Skelly Reviewer evaluates the information presented:
- Whether or not there is a reasonable basis to believe the employee engaged in the in the performance failure or misconduct charged; and
- Whether the proposed disciplinary action appears to be within the range of reasonable penalties.
The Skelly Reviewer should not second guess the appropriateness of the penalty made by the disciplining authority. The question for the Skelly Reviewer is not whether they would have imposed the same discipline, but rather, whether the discipline proposed is reasonable in light of the infractions.
