Terminating the Employment Relationship

After being terminated, Skelly timely appealed in accordance with the State’s disciplinary rules (as they existed at the time). A post-termination evidentiary hearing was held before an authorized representative of the Department’s Board. During the appeal hearing, both Skelly and the Department presented witness testimony and documentary evidence supporting their respective positions. The hearing officer sustained the termination, finding that Skelly’s failure to change his behavior after being counseled outweighed the fact that the quality of his work never suffered. Skelly challenged the hearing officer’s decision by filing a petition for writ of mandate in the local superior court. Skelly challenged his dismissal on several grounds, including the arguments that: (1) the State’s procedure of terminating a public employee without first giving him a hearing violated his “due process” rights; and (2) the discipline was unduly harsh and disproportionate to his allegedly wrongful conduct. With respect to Skelly’s “due process” argument, the California Supreme Court agreed with him and held that a permanent public employee’s property rights (i.e., the vested right to continued employment) cannot be taken away by his employer without first being afforded certain procedural safeguards. While a pre-discipline evidentiary hearing is not required before significant punitive action is imposed, there are minimum procedural safeguards that must be provided to employees before discipline is imposed. The minimum “due process” protections an employer must provide to an employee are: (1) notice of the proposed disciplinary action; (2) a statement of the reasons for the proposed disciplinary action; (3) a copy of the charges and materials on which the proposed discipline is based; and (4) the right to respond, either orally or in writing, to the authority initially proposing discipline. These procedural safeguards are now commonly referred to as “Skelly rights.” With respect to Skelly’s challenge to the degree of penalty imposed, the Supreme Court agreed with him that termination was too severe under the circumstances because there was no evidence that his job performance was actually affected by his tardiness and drinking. While noting that a public employer has discretion with respect to the degree of discipline to impose, the Skelly Court held that such discretion is not unfettered. The test the Supreme Court developed to determine whether an employer has abused its discretion in selecting too harsh a penalty is:

In considering whether such abuse occurred in the context of public employee discipline, we note that the overriding consideration in these cases is the extent to which the employee’s conduct resulted in, or if repeated is likely to result in, “[h]arm to the public service.”…Other relevant factors include the circumstances surrounding the misconduct and the likelihood of its recurrence.

The Skelly case stands for several different legal principles that directly impact the manner in which a public employer terminates a tenured or permanent employee. These legal principles and strategies include the following.

Terminating the Employment Relationship ©2019 (s) Liebert Cassidy Whitmore 18