Terminating the Employment Relationship

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 the employee’s 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 Stat e’s rules regarding “intemperance,” “inexcusable absence without leave,” and “other failure of good behavior during duty hours that caused discredit to the Department.” After being terminated, Skelly timely appealed in accordance with the State’s discipli nary 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

Terminating the Employment Relationship ©2022 (s) Liebert Cassidy Whitmore 17