Terminating the Employment Relationship

An agency has 30 days after making a decision to impose discipline to serve a firefighter or police officer with a final notice of discipline. 21 As a best practice, an agency can serve the final notice of discipline within 30 days after the Skelly meeting/conference. Doing so will avoid any dispute as to whether the agency timely served the final notice. In addition, some agencies also have their own rules (e.g., personnel rules or MOU provisions), which contain specific time limits for service of disciplinary documents. Make sure you follow all time limits to avoid compromising the discipline.

LCW Practice Advisor

If the Skelly officer upholds termination, the Final Notice of Termination will mirror, in most respects, the Notice of Intent. The only major difference should be that the Final Notice of Termination will have a detailed description of what occurred at the Skelly conference with an explanation as to why the employee’s viewpoints were not persuasive. The Skelly officer may decide, based upon the facts presented or review of other disciplinary matters, that termination (or other level of discipline) is too severe. If that is the case, the Skelly officer must issue a Final Notice of Discipline identifying the new disciplinary penalty. It is important to remember that unless an employee expressly agrees to waive their right to a post-discipline appeal, they will still have the right to challenge reduced discipline through the appeal process. Thus, consider whether a settlement agreement can be negotiated with the employee before voluntarily agreeing to reduce the termination to lesser discipline (e.g., suspension without pay). Settlement agreements of this nature, including last chance agreements, are enforceable provided they are drafted in a clear and unambiguous manner. 22 Liebert Cassidy Whitmore recommends that managers and supervisors contact their Human Resources professionals and/or legal counsel before attempting to draft a settlement agreement involving discipline to make sure it is written in a manner to withstand legal scrutiny. Enforceable settlement agreements are discussed in detail below. 2. P OST -D EPRIVATION D UE P ROCESS – T HE E VIDENTIARY H EARING Due process requires that a terminated employee have the opportunity for a post-disciplinary evidentiary appeal hearing before a nonbiased hearing officer or body. During the evidentiary hearing, the employer bears the burden of proving the charges against the employee by a “preponderance of the evidence” (i.e. greater than 50%, more likely than not). Each side may present argument, witnesses and documentary evidence. Although witnesses are subject to cross-examination, the technical rules of evidence used in courtrooms typically do not apply.

Terminating the Employment Relationship ©2022 (s) Liebert Cassidy Whitmore 22