You may choose someone to represent you in challenging disciplinary action, including your union representative (SEIU, Local 521, CEMA, 1587, etc.) or an attorney. You are responsible for retaining that representative. If you have a representative, please consult with your representative for advice.
If you have chosen to represent yourself, you may find a copy of the Personnel Board Rules of Procedure. If you have questions about when your appeal is scheduled for hearing before the Personnel Board or scheduling your appeal you may contact the Board Secretary at [email protected]. However, the Board Secretary cannot provide you legal advice about your appeal.
This is a document issued to an employee by management based on employee performance or behavior that management believes violate County or Department policies and procedures, professional standards, or legal requirements.
If you have received a Notice of Recommended Disciplinary Action for suspension, demotion, or termination, you have the right to a pre-disciplinary Skelly hearing in front of a Skelly Hearing Officer. You may provide an oral and/or written response to the recommended discipline on or before the date of the Skelly hearing.
The Notice of Recommended Disciplinary Action recommends discipline. The final discipline is issued by the Skelly Officer after the Skelly hearing.
An employee has the right to (1) notice of the intended disciplinary action; (2) a copy of all materials upon which the disciplinary action is based; and, (3) an opportunity to respond orally or in writing prior to the effective date of the disciplinary action.
A Skelly is a hearing that provides an employee the opportunity to respond to recommended discipline before a hearing officer before the discipline is imposed. Generally, Skelly Hearings must be provided in the case of an adverse action involving termination, demotion, or suspension.
A Skelly Hearing is different than a hearing before the Personnel Board. The Skelly Hearing allows the employee to respond to recommended discipline before a final discipline is determined. If the employee disagrees with and wishes to challenge the final discipline after the Skelly Hearing, they may appeal the Final Disciplinary Action before the Personnel Board.
If the Recommended Disciplinary Action provides instructions for scheduling a specific date and time to appear before the Skelly hearing officer, the employee must follow those instructions within the stated timeline.
If the Recommended Disciplinary Action provides a specific date, time and location for the Skelly hearing, the employee must appear as directed; or, contact the Skelly hearing office if there is a conflict.
If the employee opts to respond in writing, the employee may either submit their written response at the Skelly hearing or before the date of the skelly hearing.
John F. Skelly, MD, was a physician in the State Department of Health Care Services who appealed his termination to the California State Supreme Court in 1972. The California State Supreme Court identified the pre-disciplinary procedural due process requirements and held that substantive due process guides the selection of a level of penalty that is fair and proportionate to the misconduct. Ultimately, this “Skelly” right now applies to all California public sector employees when they may lose property rights (i.e., wages).
Attending a Skelly Hearing is optional. If the employee does not submit any formal response or attend the Skelly Hearing, the Skelly Officer will complete a review of the materials as provided in the Recommended Disciplinary Action without a response from the employee.
This is the final level of discipline that will be imposed. It is determined by the Skelly Officer after the Skelly Hearing. The level of discipline recommended in the Recommended Disciplinary Action may be sustained, reduced, or revoked.
Employees who disagree with the Final Disciplinary Action may challenge it in an evidentiary hearing before the Personnel Board by filing a request to the Personnel Board for a public hearing . This request must be submitted within 10 working days of receipt of the Final Disciplinary Action notice. The employee must send a written appeal to the Personnel Board care of the Clerk of the Board. The instructions for submitting an appeal are stated in the Recommended Disciplinary Action and the Final Disciplinary Action.
Personnel Board appeals are open to the public, except for appeals by employees subject to POBAR and items agendized for Closed Session discussion and deliberation. Proposed and Final Findings of Fact are made available to the public and are posted online. These public findings include a description of the reason for the discipline and the Personnel Board’s decision.
After the hearing, the Personnel Board adopts findings of fact, which describe the Board’s decision on the challenge to the discipline and the evidence supporting it. The findings are made available to the public and are posted online.
Typically, the prevailing party prepares and submits proposed findings of fact. The losing party may provide proposed concerns about those findings or its own alternative findings. The Board then reviews the proposed findings and decides what to adopt and whether to make any changes to the proposed findings before adopting them.
The findings, conclusions, and decisions of the Personnel Board can generally only be challenged by seeking judicial review by filing a petition for writ of mandate per California Code of Civil Procedure section 1094.5. The writ petition must be filed no later than the 90th day following the date on which the Board decision becomes final. The Board decision becomes final when the findings are mailed by first-class mail, postage prepaid, including a copy of a certificate of mailing to the party seeking any such writ.
For Executive management employees, the Personnel Board’s findings, conclusions, and decisions are advisory to the County Executive, who reviews them and makes the final decision.
If you file an appeal to the Personnel Board and do not attend the scheduled hearing, pursuant to the Personnel Board Rules, a default hearing will be convened, the County will present a prima facie case and the personnel Board will issue a decision based on the evidence presented in the default hearing.