Hot Topics # 3



“Skelly” is an interesting word. It seems to have been around long enough in Employee-Employer labor relations jargon to become a regular word. Actually it has been around about 24 years, since the 1975 court decision of the same name. But what really is Skelly and how does it actually impact the workplace? Questions and issues regarding Skelly due process rights are often popular subjects on promotional assessment examinations for management positions such as Fire Captain and Chief Officer. The concept is also often misunderstood, misstated, and misapplied.

The Due Process Clause of the Fourteenth Amendment to the U.S. Constitution protects a public employee’s right to both a property and liberty interest in employment. The California Constitution also provides a similar protection. The California Supreme Court has stated that “when a person has a legally enforceable right to receive a government benefit, provided certain facts exist, this right constitutes a property interest protected by due process.” Hence, under the court’s interpretation, the job is actually characterized as the employee’s property. This was articulated in 1975 by the California Supreme Court in the now famous case called Skelly v. State Personnel Bd., 15 Cal. 3d 194.

The concept of due process should be defined at the outset. It generally means that, prior to any significant discipline, an employee must be afforded the charges against him/her and an opportunity to present his/her side of the issue. The whole issue of due process will be explored later in depth. Also, more will be said later about the concept of a “liberty interest.”

A public employer’s personnel rules and/or policies that classify an employee as “permanent” or “career” is the usual way an employee is given an enforceable right to continued employment. Hence, the practical effect is a grant to the employee of a property interest in the employment situation. It is for this reason that most well written employee policies clearly define the probationary period and calculation of the critical date when it concludes. During the probationary period, an employee can be removed for any reason including for no reason. It is not considered a termination but simply a failure to complete probation. In short, due process rights do not normally attach during the probationary period. Once the employee completes probation, all the due process rights then attach. It should be noted here that even probationary employees are protected from retaliation for the exercise of basic constitutional rights such as free speech and freedom from discrimination for race, creed, color, sex, religion, etc.

In determining whether or not an employee possesses a protected property interest, courts look to the totality of the employment situation and the relevant language in the personnel rules and policies. Generally, the probationary period will be clearly spelled out along with any provisions to extend it for good and articulated cause. If the relevant policies do not alone establish a property interest, they may be read in conjunction with a “mutually explicit understanding” between the employer and employee to find a protected property interest.

As a general rule, paid firefighters who have completed probation, have due process property rights in their employment. This is not to be confused with many management level positions, such as some chief officers, who are considered “at-will” employees. “At-will” means that an employee serves at the pleasure of the employer and, with certain limited exceptions, can be terminated without due process rights.

The court decisions, including Skelly and later decided cases, have long established that public employees who may be terminated only for cause (i.e. not on probation and not specifically at-will) have a property interest in their continued employment. Therefore, a public employer must satisfy the procedural due process requirements before depriving a permanent employee of his/her property interest through disciplinary action. Usually, a public employer can satisfy these procedural requirements with a minimum of impact to the organization.

Skelly thus applies to discipline that constitutes a “taking” of property (the employee’s job) and may include discipline that is short of termination if it is nevertheless "significant.” Significant is one of those hard to define legal terms and the courts continue to struggle with it. With regards to short term suspensions of public employees, the Court has acknowledged that “suspension of a right or of a temporary right of employment may amount to a ‘taking’ for ‘due process purposes.’” In relation to significant employee discipline, regardless of whether or not good cause is ultimately found to exist for the discipline, before an employee can be deprived of the property interest he/she has in a job, certain procedural safeguards must be provided.

Due process, however, does not require that the employee be given a full evidentiary hearing prior to imposition of discipline. It does require that the employee be accorded certain procedural safeguards before the discipline becomes effective. The term Skelly is thus considered synonymous with pre- discipline hearing procedures.

The basic Skelly decision held that, as a minimum, pre-removal safeguards must include (1) notice of the proposed action, (2) the reasons for the action, (3) a copy of the charges and materials on which the action is based, and (4) the right to respond, either orally or in writing, to the employing agency imposing the discipline. Note: Skelly rights are pre-disciplinary safeguards and are required even where the public employer, at a later time, provides a full evidentiary hearing after imposing the discipline. These safeguards are not overly burdensome and should be satisfied by an employer with a minimal effort.

Employee labor organizations have attempted to put forth an argument that employers must extend Skelly rights even if the employee is not removed from his/her position pending a final hearing. That position has not been recognized by the courts because pre-disciplinary safeguards are not applicable if the employee is not deprived of a property interest prior to a full evidentiary hearing. Where the employee remains in his/her position and continues to receive compensation and benefits, there has been no “taking” in violation of the employee’s rights. The Skelly decision also goes on to clarify the sufficiency of the pre- disciplinary hearing. The court stated that the employee must be afforded:

“…prior procedural protections to ‘minimize the risk of error in the initial removal decision.’ Due process does not require the state (employer - clarification added) to provide the employee with a full trial-type evidentiary hearing prior to the initial taking of punitive action. However,…due process does mandate that the employee be accorded certain procedural rights before the discipline becomes effective.”

In applying the Skelly requirements to various factual situations, the California Supreme Court has required that each safeguard be given at a “meaningful” time and in a “meaningful” manner. The courts have gone on to define meaningful as accomplished in a way to significantly protect the employees interests. For instance, the court has held that a meeting to discuss the performance evaluation between an employee and a supervisor does not give rise to Skelly rights. Conversely, the right to respond to the charges has been held to not be meaningful if the employee is not given an adequate time to review the charges and prepare a defense. In addition, the right to respond has been held not meaningful if the employer refuses to discuss the charges or listen to the employee’s responses and is just “going through the motions.” This is analogous to bad faith bargaining under Section 3500 of the Government Code (MMB). Finally, the Skelly requirements have not been met if, in reaching the decision, the employer considers any evidence that was not initially provided to the employee.

The Court has further defined and refined the Skelly procedural requirements in a whole host of later cases. For instance, a protected property interest does not mean that the employee has a right to a particular assignment or position. This remains a management right. And, a suspension from employment is generally viewed as a relatively minor deprivation of property and therefore necessitates fewer procedural safeguards. The degree of discipline generally dictates the degree of Skelly procedural safeguards that must be afforded but this remains a somewhat gray area.

The remedy for denial of due process by virtue of a Skelly violation is back pay for the period in which the discipline was improperly imposed. Thus the back pay period commences on the date of actual discipline and ends on the date the employer reaches a decision on the discipline’s validity.

In summation, the due process clause of the Fourteenth Amendment to the U.S. Constitution protects a public employee’s right to a property interest in employment. Skelly v. State Personnel Bd. is the leading court case that has sought to define and clarify these due process interests. Most permanent (non- probationary) public sector employees in California have a legally enforceable property right to continued employment, subject to minimum due process protections. Armed with an understanding of this, an employer should be able to meet the requirements of Skelly due process and protect an employee’s interest, with a minimal impact to the organization.

As mentioned earlier, the Due Process Clause of the Fourteenth Amendment protects a public employee from the deprivation of liberty and property without due process of law. Although an employee may not have a property interest in his/her employment due to probationary or at-will status (hence, no Skelly rights), he/she may still have a liberty interest in the employment situation. If the discipline (discharge) had the practical effect of impugning the employee’s reputation or imposing a stigma on him/her that would foreclose his/her freedom to take advantage of other employment opportunities, the employer’s actions could have the effect of depriving the employee of a liberty interest.

The liberty interest protected by the Due Process Clause includes the freedom to work and earn a living without the burden of an unjustified label of infamy. A liberty interest is affected if an employer’s action creates a stigma that restrains the employee’s freedom to obtain employment opportunities. Although an employee does not have a liberty interest in retaining a specific position with a specific employer, he/she does have an overall liberty interest in pursuing the occupation of his/her choice. An employer cannot terminate an employee and further seek to preclude he/she from ever obtaining similar employment elsewhere. An terminated employee cannot be effectively barred from earning a living. This is essentially the liberty interest concept.

A liberty interest arises where the employee has been deprived of the basic “liberty” guaranteed all persons by the Fourteenth Amendment of the U.S. Constitution’s Due Process Clause. All public employees, whether tenured or probationary, permanent or temporary, may in some instances possess a liberty interest in their employment.

Denial of due process based on deprivation of a liberty interest exists if the following three conditions are met: (1) the discipline or discharge occurred in conjunction with a charge that impairs the employee’s reputation for honesty or morality, or his/her standing and associations within the community; (2) the employee denies the charge or, at least, contests the accuracy of it; and (3) there is public disclosure of the charges by the public employer. Taking these three requirements together, the charge made by the public employer must stigmatize the employee to the point that he/she is not “as free as before” to seek other employment. This is the so-called liberty interest test and all three elements must be satisfied. The first component of a liberty interest is satisfied when an employee’s job termination or discipline is based on charges of misconduct that “stigmatize” his/her reputation, seriously impair his/her opportunity to earn a living, impair the employee's reputation for honesty or morality, or where his/her standing or associations within the community might be seriously damaged or impaired. Although nearly any type of discipline or discharge has a negative impact on an employee’s character, not every imposition of discipline violates an employee’s liberty interest. And the mere fact in and of itself that an employee is discharged from a public employment position does not deprive him/her of a liberty interest.

The charge must seriously damage the employee and involve moral turpitude. Charges of mere incompetence or the inability to get along with other employees does not trigger a liberty interest situation. Allegations of misconduct or dishonesty, as opposed to mere incompetence, suggest a possible protected liberty interest situation. Here, the employee must be given an opportunity to explain and/or refute the allegations. Thus, where an employee’s moral character and reputation for dishonesty becomes an issue, due process becomes an issue.

The following are examples where a court found a liberty interest infringement:

? Probationary Fire Engineer fired for theft of fire department property.

? Probationary police officers fired for unspecified misconduct based on unsworn citizen complaint and told they could never work for the City and County of San Francisco again.

The following are examples where a court found no liberty interest infringement:

? Mere incompetence, such as excessive absenteeism, held not to be a charge of moral turpitude.

? Rejection of a probationary employee for failure to meet minimum standards does not stigmatize an employee’s reputation.

? The label of incompetence is not an “infamy” constitutionally requiring due process protection.

The second component requires that the employee deny the allegation or contest its accuracy. The charge must be substantially false. If the employee admits the charge, there is no infringement of a liberty interest. If the charge is true, the “as free as before” test to find any other employment that a dishonest or immoral job-seeker could find has been met and the liberty interest has not been impaired. A potential problem area for the employer lies here. In most situations the discharged employee is neither completely innocent nor completely guilty of the worst. It is a matter of degree and the definition of “substantially false” becomes very subjective. Unless the employer is able to conclusively prove all the allegations, the discharged employee may later be able to assert that some were false.

The third component to asserting a liberty interest is that the public sector employer must have disclosed the allegations publicly. This often happens where the employer gives an interview to the media or where the employer is called by a new prospective employer for a reference or background check. And, courts have been very broad in their interpretation of what constitutes a “public disclosure.” It has been held at least once that any disclosure is a public disclosure. It is often for this reason, and sometimes coupled with the second component above, that labor attorneys frequently advise their employer clients to be careful about what types of information to disseminate about a former employee. It is often better to simply verify that the employee worked for the agency for a specific time period and has left the employment, and leave it at that.

In conclusion, despite an employee’s status as a probationary or permanent employee, he/she nonetheless may be entitled to a liberty interest: (1) where there is a stigmatizing charge of dishonesty or immorality; (2) where the employee denies the merits of the charge; and (3) where the accusation is publicly disclosed. The employee has a constitutional right to due process before he/she is deprived of liberty to pursue future job opportunities.

In the broader sense, and by way of review, the Due Process Clause of the Fourteenth Amendment to the U.S. Constitution protects a public employee’s right to a property interest in employment. Skelly v. State Personnel Bd. is the leading court case that has sought to define and clarify these due process interests. Most permanent public sector employees in California hold a legally enforceable property right to continued employment, subject to minimum due process protections. Armed with an understanding of this, an employer should be able to meet the requirements of Skelly due process and protect an employee’s liberty interests, with a minimal effort. Meeting these requirements should not unreasonably burden or impact the employer.

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