Terminating the Employment Relationship

e. POBR/FBOR California’s Public Safety Officers Procedural Bill of Rights Act (“POBR”) and Firefighters Procedural Bill of Rights Act (“FBOR”) create certain protections for firefighters, police officers, deputy sheriffs and other sworn personnel. 13 The FBOR does not apply to firefighters who have not successfully completed the probationary period established by their employer. 14 Under the POBR, peace officer employees have a right to an administrative appeal from disciplinary action once they have “successfully completed the probationary period.” 15 This statutory entitlement to appeal does not apply to an officer rejected during his/her entry-level hiring probationary period, so long as the reasons for the rejection are performance based. With regard to promoted peace officer employees rejected while serving a promotional probation, there has been no definitive judicial determination. But the statute appears to deny the right to appeal a rejection if it is performance based. Under both the POBR and FBOR, employees released for stigmatizing reasons are entitled to a liberty interest hearing and possibly additional legal protections (see liberty interest hearing discussion above). C. P ERMANENT , OR “F OR C AUSE ,” E MPLOYEES Most California public employees have what is known as a constitutionally protected “property” interest in continued employment. Terminating an employee with a property interest in his or her position requires an agency to provide pre-discipline and post-discipline “due process.” 16 Failure to provide due process can result in the termination being reversed or a civil rights lawsuit. 1. P RE -D EPRIVATION D UE P ROCESS – “S KELLY ” Anyone who has been employed in the public sector for any significant period of time has undoubtedly heard of the term “Skelly” used in the workplace. The term “Skelly” comes from the California Supreme Court case Skelly v. State Personnel Board . 17 The petitioner in that case, John Skelly, was a medical consultant working for the California Department of Health Care Services. As an employee of the State for seven years, Skelly was a “permanent” employee under the State’s civil service rules. Over approximately an 18-month period, Skelly had been repeatedly counseled, reprimanded and even suspended (for one day) for excessive absenteeism, tardiness, and drinking alcohol on the job. While these problems did not directly affect the quality of Skelly’s work, he was eventually terminated for violating the State’s rules regarding “intemperance,” “inexcusable absence without leave,” and “other failure of good behavior during duty hours that caused discredit to the Department.”

Terminating the Employment Relationship ©2019 (s) Liebert Cassidy Whitmore 17