Principles for Public Safety Employment

Walls incurred an unexcused absence on March 3 in violation of the agreement. The District terminated him effective March 6 without a Skelly pre-termination meeting. Walls sued the District alleging violations of the Family and Medical Leave Act (FMLA) and his due process rights because he did not receive a pre termination meeting. The District asserted that, in signing the agreement, Walls waived his right to a Skelly meeting. The agreement stated that “you and your union representative may not grieve or arbitrate this matter if you fail to comply with these conditions.” The Ninth Circuit found, however, that this language addressed only Walls’s post-termination rights, and not his pre-termination due process rights. In addition, the agreement stated that non-compliance with the agreement “will result in your immediate and final termination.” The Court held that the word “immediate” alone was not sufficient to waive Walls’s right to a Skelly meeting. Overall, the Court found that, because Walls received a Skelly meeting before his January 27 termination and because the agreement required him to waive the post-termination grievance process but was silent as to his pre-termination rights, it was logical for Walls to assume that he would be afforded Skelly rights. This case highlights the importance of identifying in a last chance agreement what specific rights the employee is waiving, and what effect the agreement will have on the employee’s prior discipline.

6. I F THE S KELLY O FFICER D ECIDES TO R EJECT THE P ROPOSED D ISCIPLINE If, after the Skelly meeting/conference, the Skelly officer decides that disciplinary action is not warranted, the Skelly officer should notify the employee of his/her decision in writing. The Skelly officer should explain his/her rationale in detail in any notice.

Section 5 A DMINISTRATIVE A PPEALS

A. W HEN IS A P UBLIC S AFETY E MPLOYEE E NTITLED TO AN A DMINISTRATIVE A PPEAL UNDER THE POBR AND FBOR? 1. A FTER A PUNITIVE ACTION Government Code section 3304, subd. (b), provides: “No punitive action, nor denial of promotion on grounds other than merit, shall be undertaken by any public agency against any public safety officer who has successfully completed the probationary period that may be required by his or her employing agency without providing the public safety officer with an opportunity for administrative appeal.” Although the statute is, on its face, silent as to when the

Principles for Public Safety Employment ©2022 (s) Liebert Cassidy Whitmore 86