Section 3392.8 - Skelly Hearing(a) All department employees may request a Skelly Hearing prior to the effective date of an adverse action.(b) Non-manager employees must request a Skelly hearing within five working days from the date of service of the notice of adverse action. Managerial employees must request a Skelly hearing within ten calendar days from the date of service of the notice of adverse action. If any provision of this section is inconsistent with a Bargaining Unit Agreement, the notice provision(s) of the agreement shall apply.(c) Employees waive their right to a Skelly Hearing by not timely requesting a Skelly Hearing.(d) If the employee requests a Skelly Hearing, the Skelly Hearing shall be conducted, and a Skelly Decision issued, prior to the effective date of the adverse action unless waived by the employee in writing.(e) The Skelly Package shall be served on the employee with the notice of adverse action prior to the Skelly Hearing.(f) Unless waived by the employee, the Skelly Officer shall be a manager at an organizational level above the employee's supervisor, who did not request a confidential internal affairs investigation or approval of direct action, sign the employee's notice of adverse action, or participate in the decision to take adverse action.(g) If the subject employee's supervisor is the appointing power, the appointing power may act as the Skelly Officer or designate another person to act as the Skelly Officer.(h) Employees shall be allowed representation during the Skelly Hearing. The representative cannot be involved in the incident resulting in adverse action. A rank-and-file Job Steward acting in their representational capacity cannot represent a supervisory employee. A supervisory Job Steward acting in their representational capacity cannot represent a rank-and-file employee. However, a rank-and-file or supervisory Job Steward may represent an employee in a non-union capacity, but not during state time.(i) The employee and the employee's representative may present facts in mitigation to the Skelly Officer in writing, orally, or both. The employee or their representative may submit affidavits or written statements for the Skelly Officer's consideration. The Skelly Hearing is not an evidentiary proceeding, therefore, the employee does not have the right to call witnesses on their behalf.(j) The Skelly Officer may ask questions related to the allegations contained in the notice of adverse action, the supporting evidence, or any information presented by the employee or the employee's representative. The Skelly Officer has the right to restrict any oral presentation that is argumentative or repetitive. The Skelly Officer is not subject to examination by either the employee or the employee's representative. With the exception of acknowledging receipt, the Skelly Officer shall not provide any response to the information submitted by the employee or the employee's representative, and shall not disclose their Skelly recommendation.(k) After the conclusion of the Skelly Hearing, the Skelly Officer shall make one of the following independent recommendations to the hiring authority: (1) Additional information or investigation is needed.(2) The adverse action should proceed without modification.(3) The factual allegation(s) supporting the adverse action should be amended or the penalty reduced.(4) The adverse action should be withdrawn in its entirety.Cal. Code Regs. Tit. 15, § 3392.8
1. New section filed 12-28-2021 as an emergency; operative 1-1-2022 (Register 2021, No. 53). Pursuant to Penal Code section 5058.3, a Certificate of Compliance must be transmitted to OAL by 6-9-2022 or emergency language will be repealed by operation of law on the following day.
2. New section refiled 6-13-2022 as an emergency; operative 6-13-2022 (Register 2022, No. 24). A Certificate of Compliance must be transmitted to OAL by 9-12-2022 or emergency language will be repealed by operation of law on the following day.
3. Certificate of Compliance as to 6-13-2022 order, including renumbering of former section 3392.8 to section 3392.9, renumbering of former section 3392.7 to section 3392.8 and amendment of NOTE, transmitted to OAL 9-12-2022 and filed 9-29-2022; amendments effective 9-29-2022 pursuant to Government Code section 11343.4(b)(3) (Register 2022, No. 39). Note: Authority cited: Sections 5058 and 5058.3, Penal Code. Reference: Sections 5054 and 5058.4, Penal Code; Skelly v. State Personnel Board (1975) 15 Cal.3d 194; Section 19590, Government Code; Armstrong et al. v. Newsom et al., United States District Court for the Northern District of California, Court Case number 94-cv-02307-CW; Madrid v. Woodford, Special Masters Final Report Re: Department Of Corrections Post Powers Investigations And Employee Discipline; Case No. C90-3094-T.E.H., Madrid v. Woodford, Order; Case No. C90-3094-T.E.H. Class Action and CCR, Title 2, Section 52.6.
1. New section filed 12-28-2021 as an emergency; operative 1/1/2022 (Register 2021, No. 53). Pursuant to Penal Code section 5058.3, a Certificate of Compliance must be transmitted to OAL by 6-9-2022 or emergency language will be repealed by operation of law on the following day.
2. New section refiled 6-13-2022 as an emergency; operative 6/13/2022 (Register 2022, No. 24). A Certificate of Compliance must be transmitted to OAL by 9-12-2022 or emergency language will be repealed by operation of law on the following day.
3. Certificate of Compliance as to 6-13-2022 order, including renumbering of former section 3392.8 to section 3392.9, renumbering of former section 3392.7 to section 3392.8 and amendment of NOTE, transmitted to OAL 9-12-2022 and filed 9-29-2022; amendments effective 9/29/2022 pursuant to Government Code section 11343.4(b)(3) (Register 2022, No. 39).