orego a hearing.
TRAINING BULLETIN
Evaluation Coordinator: IAD Commander
Automatic Revision Cycle: 3 Years
partment Training Bulletins shall be used to advise members of current police techniques and procedures and shall constitute official policy.”
Index Number: V-T.4
Alpha Index: Due Process Hearings
Effective Date:
1 Feb 11
“De
DUE PROCESS HEARINGS
The purpose of this Training Bulletin is to set forth Department policy and procedures for offering Skelly Hearings to non-probationary members or permanent civil service employees facing disciplinary action. For the purpose of the Training Bulletin, the terms “member” or “employee” or “subject personnel” refer to a non-probationary member or permanent employee, unless otherwise specifically denoted. This Training Bulletin additionally sets forth the circumstances in which Lubey Hearings must be offered to probationary members/employees who are terminated for specific reasons that may result in stigma or that foreclose other employment opportunities.
SKELLY HEARINGS
The federal and state constitutions prohibit deprivation of life, liberty, and property without procedural due process. Courts have found that a member/employee’s permanent civil service job is defined as “property.” Accordingly, an employer seeking to deprive a civil service employee of pay must provide notice of the proposed discipline and an opportunity to respond at a pre- termination hearing1. The hearing is not a full trial-type hearing. There is no right to representation by counsel or to confront or cross-examine witnesses.2 A member/employee may instead choose to respond in writing and f
WHAT NOTICE MUST A MEMBER/EMPLOYEE RECEIVE?
The Department must provide an employee/member with notice of the proposed disciplinary action, the reasons for the action, a copy of the charges and the materials upon which the action is based. The use of the word “materials” does not require the Department to produce each and every document that is part of the Department’s Internal Affairs investigation. 3 What must be produced
is the relevant supporting evidence. There is no requirement that the Department produce what an employee/member may contend is “exculpatory” evidence that was not relied upon by the Department in reaching its decision4.
WHO CAN SERVE AS A SKELLY OFFICER?
The pre-termination hearing must occur before a “reasonably impartial and noninvolved reviewer.”5 The Skelly Officer must not be a potential witness or have had a role in initially recommending or investigating the allegations.
1 A reclassification to a lower class does not constitute a demotion or require a Skelly Hearing.
Schultz v. Regents, 160 Cal. App. 3d 768 (1984).
2 Skelly v. State Personnel Board, 15 Cal. 3d 194.
3 Gilbert v. City of Sunnyvale, 130 Cal. App. 4th 1264 (2005). 4 Id. at 1280. See also Holmes v. District Attorney, 68 Cal. App. 4th (1998). 5 Titus v. Civil Service Comm., 130 Cal. App. 3d 357 (1982).
2 Due Process Hearings, Index Number V-T.4
SCOPE OF SKELLY OFFICER REVIEW
In determining whether reasonable grounds exist for proposed discipline, the Skelly Officer needs to consider the following:
• Did the Department adequately warn the member/employee of the consequences of his/her conduct?
• Did the Department investigate the allegation(s) before administering discipline? • Was the investigation complete, fair, and objective?
• Did the investigation establish a preponderance of evidence to support the finding? • Were the rules, orders, and penalties applied without bias? • Is the proposed discipline just, considering the member/employee’s past disciplinary record?
RESPONSIBLITIES OF A SKELLY OFFICER
Review of Skelly Documents
The Skelly Officer has a responsibility to review the Skelly letter, all the materials upon which the proposed discipline is based, and any response submitted by the member/employee.
When the member/employee requests a Skelly Hearing, but does not submit a formal response or attend the meeting, the Skelly Officer must still complete a review of the materials provided .
Scheduling the Skelly Hearing
A member/employee receiving a Skelly Letter needs to review the correspondence upon receipt.
The Skelly Letter sets forth the member/employee’s deadline for responding to the contents of the letter, orally or in writing. The Skelly Letter also advises the member/employee of the time and date for the Skelly Hearing.
The Skelly Officer, after conferring with the IAD Commander, may grant a reasonable extension for the member/employee to respond, based on the seriousness and complexity of the allegation(s).
Any requests from a subject member/employee or his/her representative regarding the proposed discipline, the Skelly file, additional documents, or the initial scheduling of the Skelly Hearing date shall be referred to the IAD Commander. All written correspondence received from a subject member/employee or his/her representative shall be forwarded to the IAD Commander.
Before the Meeting
The Skelly Officer shall:
• Be familiar with the City’s Administrative Instruction 521; • Disqualify themselves if directly connected to the initial recommendation for disciplinary action, were involved in the investigation, or serve in the member/employee’s chain of command;
• Thoroughly review the pre-disciplinary Skelly letter and all attached materials, including the member/employees disciplinary history, and listen to audio recordings;
3 1 Feb 11 ● Oakland Police Department
• Understand that the member/employee may have one (1) representative at the Skelly Hearing, who may be a union representative, attorney, or other individual. Make certain that if a representative will not be attending, the member/employee executes a written waiver of representation.
• Work with the member/employee or their representative to arrange for a mutually convenient time and location if rescheduling the Skelly Hearing is necessary; • Remember the Skelly Hearing is not an evidentiary hearing. The member/employee is also entitled to the appeal process set forth in the applicable Memorandum of Understanding;
• Ensure adequate time is scheduled to allow the member/employee or their representative to fully respond to the allegation(s) and/or provide evidence of mitigating circumstances; • Confer with the Office of the City Attorney to determine whether a City representative needs to attend and make appropriate scheduling arrangements; and • Consult with Employee Relations or the Office of the City Attorney if procedural advice is needed.
During the Hearing
The Skelly Officer shall:
• Introduce him/herself and all parties in attendance;
• Explain the meeting is an informal opportunity for the member/employee or their representative to respond to the allegation(s) and facts described in the Skelly Letter; • Advise all parties that all the materials in the Skelly file have been reviewed; • Review the contents of the Skelly Letter and supporting documentation to make sure the member/employee or their representative has received and reviewed the allegation(s), facts, and supporting documentation;
• Proceed with the meeting by asking the member/employee or their representative to respond to the allegation(s) in the Skelly Letter and allow them to present their arguments;
• Listen carefully to what the member/employee or their representative has to say; • Avoid asking questions unless necessary to clarify information that has been presented. • Maintain control of the proceeding;
• Honor reasonable requests for breaks;
• Take good notes and carefully document any objections the member/employee or their representative may raise;
• Contact IAD if new information concerning the member/employee’s misconduct comes to light so that IAD may consider whether the information requires additional investigation; and
• Inform the member/employee or their representative that the matter will be taken under consideration and a written recommendation will be submitted to the Chief of Police.
4 Due Process Hearings, Index Number V-T.4
The Skelly Officer:
• Shall not suggest the manner (oral or written) in which the employee must respond to the proposed allegation(s);
• Shall not argue with the member/employee or their representative; • Shall not allow the member/employee or their representative to ask questions about the case or the Department’s actions leading up to the proposed discipline; • Shall not allow the member/employee or their representative to audio record the hearing unless both parties agree to record the meeting;
• Shall not make a settlement offer, agree to any settlement, or give any indication that the Department may agree to compromise the case; and
• Shall not communicate the Skelly recommendation to the member/employee or their representative.
After the Hearing
• Decide whether the information provided by the member/employee or their representative requires changes to the Department’s recommendation;
• Maintain confidentiality and only discuss the case with those who qualify on a need-to know- basis; and
• Submit a written recommendation to the Chief of Police within 14 calendar days of the Skelly Hearing. If the submission deadline cannot be met, a request for an extension must be approved by the Chief of Police.
PREPARING THE SKELLY RECOMMENDATION
• The Skelly Officer prepares and submits a written recommendation to the Chief of Police describing the allegation(s), the documents reviewed prior to the hearing, and a brief summary of the points raised in opposition to the proposed discipline. The Skelly Officer recommends if the proposed discipline should be sustained, modified, or rescinded.
Any documents submitted by the member/employee or their representative before, during, or after the hearing shall be included in the Skelly file.
The Chief of Police or designee has final authority to determine whether to accept or reject the Skelly Officer’s recommendation.
LUBEY HEARINGS
An at-will member or probationary employee has no property interest in employment. However, such a member/employee suffers a deprivation of a liberty interest if the member/employee is discharged for reasons that impose stigma or that are likely to limit future employment opportunities.
6 For that reason, a probationary member/employee who is terminated for reasons that could result in such consequences is entitled to a post-termination “name-clearing” hearing.7 Lubey Hearings are conducted in the same way as Skelly hearings.
6 Holmes v. Hallinan, 68 Cal. App. 4th 1523 (1998).
7 Lubey v. City and County of San Francisco, 98 Cal. App. 3d 340 (1979).
APPENDIX
Skelly Recommendation Exemplar
Hearing Date/Time: (Day, date, beginning and ending time) Hearing Officer: (Name and rank of Skelly Officer)
Subject: ( Name of subject employee)
Representative: (Name of representative in attendance) Allegation: (Succinct description of allegation(s))
MOR Violation: ( Applicable violation and title)
Proposed Discipline: ( Level of Discipline in Skelly Letter) Recommended Discipline: (Level of discipline recommended)
Pre-Hearing Review
(List all Departmental publications reviewed before the Skelly Hearing.)
Example:
I reviewed Departmental General Order M-3, Complaints Against Department Personnel and Procedures; Departmental Discipline Policy (TB V-T); Departmental Discipline Matrix (TB V-T Appendix), Skelly Process (TB V-T.4); and the entire Skelly file prepared by the Internal Affairs Division.
Post-Hearing Review
(List materials reviewed after the Skelly Hearing)
Hearing Summary
(Synopsis of what occurred and material points discussed during the Skelly Hearing.)
Analysis/Assessment
Provide a detailed analysis and assessment of the IAD finding and whether there is a preponderance of evidence to support it.
Level of Discipline
Determine whether the level of discipline is just and consistent with the seriousness of the allegation(s). Discuss if there are mitigating/aggravating circumstances present that would change the level of discipline.
Conclusion / Recommendation
Provide an affirmative statement concurring or dissenting with the finding; and provide an affirmative statement whether the proposed level of discipline is appropriate.
(Insert 5 Spaces and Signature Blocks)
Name of Skelly Officer Anthony W. Batts
Rank Chief of Police
Unit of Assignment