Seeking A Second Opinion: Why Impartial Skelly Officers Matter In Discipline Cases

What is a Skelly?

When public employees are facing serious discipline, they are generally entitled to a pre-disciplinary process known as a Skelly Hearing or simply, “Skelly,” during which the employee is permitted to respond to the proposed action.[1]  The Skelly is typically brief and does not include the robust components of a post-disciplinary appeal. Nonetheless, the Skelly provides an important opportunity for the employer to hear the employee’s perspective on the proposed discipline before imposing it. 

The Skelly is part of an employee’s due process rights and provides a “common-sense” check on the proposed discipline. It is an early opportunity to avoid a disproportionate disciplinary action that may be motivated by the improper motives of a supervisor or other disciplinary authority.  The Skelly is also an important tool for employers to avoid lengthy post-disciplinary appeals or even litigation.

What happens during a Skelly?

Prior to the hearing, the employee is entitled to notice of the proposed discipline and copies of all materials upon which the action is based.  The Skelly is not an evidentiary hearing.  Rather, it is a preliminary opportunity for the employee to respond to the proposed discipline. During the hearing, the employee, sometimes with the aid of counsel or union representative, pleads their case to a Skelly Officer.  The employee offers argument, mitigating information, defenses, or commentary about why the proposed discipline should not be imposed or why the level of discipline should be reduced.

What happens after a Skelly?

If the employee’s discipline is not resolved at the Skelly stage, the employee has additional due process rights, which may lead to an evidentiary hearing before an Administrative Law Judge.  Beyond that, there may be other collective-bargaining-based appeal procedures, which could include grievances, mediation, or arbitration.  Eventually, the discipline may become the subject of litigation.  The time and financial costs associated with these processes can be substantial, especially if the discipline is overturned, which further highlights the importance of getting it right at the Skelly stage.

What does the Skelly Officer do?

The Officer reviews information provided by the employee along with any supporting documentation, investigative report, or other evidence that supports or undermines the proposed disciplinary action.  Ultimately, the Officer decides whether to sustain, reduce, or dismiss the proposed disciplinary action.

Who can serve as the Skelly Officer?

The Officer is supposed to be “reasonably impartial.”  This means the officer cannot be a potential witness, personally embroiled in the underlying issues, or have a stake in the outcome of the hearing.[2]  For example, the person who initially recommended the discipline or investigation that led to the discipline generally cannot serve as the Skelly Officer.[3]  The person who investigated the underlying issues is not necessarily disqualified from serving as the Officer.  However, the Officer’s impartiality is less likely to be questioned as their degree of removal from the underlying issues increases.

Who chooses the Skelly Officer?

The employer chooses the Officer.  The person selecting the Officer can be someone who would otherwise be inappropriate to serve in that role, including the supervisor who made the initial decision to discipline.

What challenges arise when trying to select a Skelly Officer?

Typically, employers try to find an uninvolved manager from within the organization to serve as the Skelly officer.  Preferably, this person does not report to the manager who recommended the disciplinary action, does not work directly with the employee facing discipline, and possesses sufficient training to make an informed decision.  However, this is not always feasible or advisable when the issues are complex, high-profile, or the underlying conduct or disciplinary decision implicated several employees or decision makers.  This is especially true for smaller employers or those with tight-knit teams.  In those situations, it may be difficult to find someone willing, sufficiently qualified, informed, and impartial enough to make a high-stakes decision about matters directly affecting a colleague’s livelihood.  This difficulty is multiplied when the disciplinary matter involves potential litigation or employees in public safety professions whose cases often call for specialized knowledge or procedures.

What happens if there are no appropriate Skelly Officers within the employer’s organization?

In some circumstances, an employer is best served by seeking an external professional to serve as an impartial Skelly Officer.  This approach has many benefits. For example, an attorney experienced in neutral fact finding with extensive experience in public employment law is likely to be thoughtful, well-reasoned, and fair in their assessment of the discipline. Further, an external Officer may foster a more harmonious workplace culture and environment by not pitting an employee designated as an Officer against colleagues or subordinates.  Additionally, an external party’s decision is less likely to be seen or challenged as a product of personal bias or workplace politics.

Why should I consider Van Dermyden Makus’ Skelly Officer Services?

VM attorneys are expert at being neutral. We know workplace investigations inside and out, from start to finish, and beyond. That expertise as neutral fact finders translates seamlessly into the role of impartial Skelly Officer.  We have a deep bench of attorneys with extensive experience in the public sector.  We also offer employers the unique and valuable perspective of attorneys who have previously represented employers, employees, and labor organizations.  This means we understand what goes into making a disciplinary decision, how it will be challenged, and when it might not hold up to scrutiny.  Additionally, we have many with substantial experience in public safety, including public safety investigations and challenging the outcomes of those investigations.  Finally, our reputation for impartiality and thoroughness makes us uniquely qualified to serve as Skelly Officers.

[1] Named for Skelly v. State Personnel Board (1975) 15 Cal.3d 194.

[2] Linney v. Turpen (1996) 42 Cal.App.4th 763, 772-73; Burrell v. City of Los Angeles (1989) 209 Cal.App.3d 568, 578- 79; Titus v. Los Angeles County Civ. Serv. Com’n (1982) 130 Cal.App.3d 357.

[3] Civil Serv. V. San Francisco Redevelopment (1985) 166 Cal.App3d 1222, 1227; Anthony G. Gough (1993) SPB Dec. No 93-26.