Q: What exactly is a Skelly hearing?
A: The constitution requires that prior to imposing discipline against a permanent employee, that employee must be provided the materials relied upon in imposing the discipline and an opportunity to speak with the decision-maker to potentially change his or her mind. This is referred to as a Skelly hearing, named after the Supreme Court case establishing this right.
The hearing itself is at the employee’s option. You are entitled to a representative of your choice. Additionally, you are to be given a reasonable opportunity to prepare and the agency must give you “all the materials upon which the action is based.” It is not an opportunity for the agency to ask more questions. Serious consideration should be given to the decision whether or not to go to a Skelly hearing. This is especially true if the underlying conduct has potential criminal liability. Statements made at the hearing could be deemed voluntary (since it is the employee’s option to go) and could be turned over to criminal investigators.
At the hearing, assuming the decision is made to go, you may present arguments and possibly additional evidence in support of your position, that the facts do not support the discipline, the discipline is excessive or both. It is not a hearing where witnesses testify.
Careful thought should be given as to exactly what, if any, new evidence is presented. If it is unlikely that the decision maker will change his/her mind then you may be better off either not going to the Skelly or waiting for the evidentiary hearing to present the new evidence for the first time.
Upon completion of the Skelly hearing a decision must be made in regards to the proposed discipline. Section 3304(f) of the Public Safety Officers Procedural Bill of Rights Act provides that if, after a Skelly hearing the Department decides to impose discipline, it must notify the officer in writing of its decision to impose discipline, including the date that the discipline will be imposed, within 30 days of the decision.
Officers who are removed, discharged, suspended or subjected to “punitive action” of any kind (with written reprimands sometimes excluded from this requirement), and whose discipline is not resolved at the Skelly hearing, are entitled to an appeal hearing. Different agencies have different types of hearing bodies. Some have Civil Service Commissions, some have Personnel Boards, some have arbitrators, some have Administrative Law Judges while others have hearing officers. The hearing tribunal’s decision can be either binding or simply a recommendation. If it is binding the decision is final (subject to judicial review).
If it is a recommendation (typically to a City Manager, County Administrator, Human Resources Director, Board of Supervisors, City Council etc.), then the body reviewing the decision need not accept the decision and may make modifications.
Please feel free to contact us directly should you have any questions or concerns regarding this or any Peace Officer's Bill Of Rights issue. We also have a free booklet available upon request which provides an overview of the Peace Officer's Bill of Rights.