Terminating the Employment Relationship

him a hearing violated his “due process” rights; and (2) the discipline was unduly harsh and disproportionate to his allegedly wrongful conduct.

With respect to Skelly’s “due process” argument, the California Supreme Court agreed with him and held that a permanent public employee’s property rights (i.e., the vested right to continued employment) cannot be taken away by his employer without first being afforded certain procedural safeguards. While a pre-discipline evidentiary hearing is not required before significant punitive action is imposed, there are minimum procedural safeguards that must be provided to employees before discipline is imposed. The minimum “due process” protections an employer must provide to an employee are: (1) notice of the proposed disciplinary action; (2) a statement of the reasons for the proposed disciplinary action; (3) a copy of the charges and materials on which the proposed discipline is based; and (4) the right to respond, either orally or in writing, to the authority initially proposing discipline. These procedural safeguards are now commonly referred to as “Skelly rights.” With respect to Skelly’s challenge to the degree of penalty imposed, the Supreme Court agreed with him that termination was too severe under the circumstances because there was no evidence that his job performance was actually affected by his tardiness and drinking. While noting that a public employer has discretion with respect to the degree of discipline to impose, the Skelly Court held that such discretion is not unfettered. The test the Supreme Court developed to determine whether an employer has abused its discretion in selecting too harsh a penalty is:

In considering whether such abuse occurred in the context of public employee discipline, we note that the overriding consideration in these cases is the extent to which the employee’s conduct resul ted in, or if repeated is likely to result in, “[h]arm to the public service.”…Other relevant factors include the circumstances surrounding the misconduct and the likelihood of its recurrence.

The Skelly case stands for several different legal principles that directly impact the manner in which a public employer terminates a tenured or permanent employee. These legal principles and strategies include the following. a. Written Notice of Intent to Terminate An employee must receive written notice of the proposed termination before it becomes effective and before the agency ceases paying the employee. This notice, commonly called the “Notice of Intent, ” should include the following: Notification of termination and a description of the purpose (e.g., “The purpose of this letter it to notify you of my proposed decision to terminate your employment as a [position] effective [date].”);

Terminating the Employment Relationship ©2022 (s) Liebert Cassidy Whitmore 18