Due Process Rights
As a public employee with permanent status, you have property rights to your job and rights to due process in formal disciplinary matters wherein you would suffer monetarily.
According to law, due process must be provided prior to a state or local government terminating, suspending, demoting, or reducing the pay of an employee, who has a vested property interest in his or her job.
Disciplinary actions for state and local employees are addressed in Skelly rights, named after the 1975 California Supreme Court decision case Skelly v. State Personnel Board. The case involved the termination of a government employee who, among other things, was deprived of his right to due process to pre-disciplinary discovery – the “materials upon which the action is based.”
Under due process requirements, employers must serve the employee with an official notice of the proposed formal discipline in the form of a Notice of Intent “NOI”, which must:
Identify the specific rules, policies or laws that have allegedly been violated by the employee
Contain the “just cause” factual basis for the discipline
Be served with all documents that were relied upon in determining the proposed discipline
Provide a deadline for the Skelly hearing or written response
Include the effective date of the discipline
Thereafter, the employee has the right to participate in the Skelly hearing which affords the employee the opportunity to respond to the proposed discipline, refute the allegations, and mitigate the intended level of discipline being proposed. Skelly hearings may be done in person or a written brief addressing the allegations in the NOI may be submitted.
Following a Skelly decision, the employee will be noticed of the Appointing Authority’s findings and decision to uphold, reduce, or set aside the discipline. If the Appointing Authority’s decision is to uphold or reduce the proposed discipline, the employee will be served with a Final Order. Thereafter the employee may file an appeal of the discipline within 10 business days of the Final Order with the intent of pursuing an evidentiary due process hearing.
Sometimes pre-hearing discussions may serve as an opportunity for both sides to reach an amenable settlement arrangement. If not, the case will then be slated for hearing. County employee cases are heard before the Civil Service Commission, while cases for employees of the Superior Court and the Los Osos CSD are heard before a mutually agreed upon arbitrator.
It is imperative that if you find yourself in the situation of being served with a Notice of Intent for a formal disciplinary action, that you immediately consult with a SLOCEA representative.
By Theresa Schultz, Senior Labor Representative
