Terminating the Employment Relationship

The Skelly notice should list all of the materials the agency relied upon in making its recommendation for the proposed discipline, as well as the documents being provided to the employee. Liebert Cassidy Whitmore recommends that an employer provide an employee subject to discipline with copies of all materials that the employer relied upon. 18

LCW Practice Advisor

b. A Reasonable Time to Respond There is no law that specifies how much time an employee must be given to exercise his/her right to respond to a Notice of Intent. Time to respond is generally fixed by management in the agency’s personnel rules (or perhaps an MOU provision). Under normal circumstances, the employee should be given at least five working days to respond. Reasonable extensions should be provided if the employee or his/her counsel makes a timely request. Failure to respond within the time specified may result in the employee’s waiver of his/her procedural rights, but circumstances surrounding the waiver should be thoroughly documented. Generally, a waiver of a constitutional right must be explicit, knowing and voluntary, and in some circumstances, a failure to respond may be excused for good cause. 19 c. Skelly Conference An employee may respond to a Notice of Intent in writing or orally at a Skelly conference. If the employee elects to respond in writing, there is no need to hold a Skelly conference. A Skelly conference is a meeting, at which an employee has the opportunity to tell his/her “side of the story” and/or to offer any mitigating factors s/he believes the decision maker should consider before the discipline is finalized. Its purpose, according to the courts, is to minimize the risk of the employer making an error in the action it takes. It is important to remember that the Skelly conference is not an evidentiary hearing.

While a Skelly conference is primarily for an employee’s benefit, management can and should use the meeting as a tool to:

Determine the strength and weaknesses of the charges;

Ascertain the true defenses available to the employee; and

Avoid surprise in the event of appeal.

There is no rule mandating who can or cannot conduct the Skelly conference (sometimes referred to as the “Skelly officer”). In the Skelly case, the Supreme Court stated the same individual who proposed the discipline could serve as the Skelly officer. In general, the Skelly officer should be someone who is ranked sufficiently high enough in the organization to make a final decision. We recommend that it be the appointing authority (i.e., person(s) with power to hire) or his/her designee(s), and whenever feasible, the same person for all Skelly conferences.

Terminating the Employment Relationship ©2019 (s) Liebert Cassidy Whitmore 20