Individual Proposing Discipline Can Serve as the Skelly Hearing Officer

March 6, 2007

Flippin v. Los Angeles City Board of Civil Service Commissioners. This case provides insight into who can serve as the hearing officer at a pre-disciplinary Skelly hearing.

Kenneth Flippin ("Flippin") is a former truck driver for the Los Angeles Department of Water and Power ("DWP"). On April 11, 2003, a DWP dispatcher received a phone call from a customer complaining that a DWP employee was sleeping in a hammock under a DWP truck in the City of Los Angeles. Mr. Flippin's supervisor drove to the scene of the citizen complaint and found Flippin sleeping soundly with his eyes closed in a hammock suspended beneath his truck.

DWP manager John Sharp ("Sharp") investigated the sleeping incident. After concluding his investigation, Sharp issued Flippin a notice of intent to terminate that provided Flippin with the opportunity to respond to Sharp either orally or in writing with any facts Flippin wished to have considered by the DWP before any discipline was imposed.

After this case made its way through the DWP disciplinary process, the Los Angeles Civil Service Board sustained the proposed termination. Flippin filed a writ petition with the Superior Court challenging the Civil Service Board's decision to terminate Flippin from his employment with the DWP. One of the arguments Flippin raised in the writ petition was that he was denied due process because Sharp investigated the sleeping incident, issued the intent to terminate and was also designated by the DWP as the Skelly officer. The Superior Court disagreed and held that no due process violation occurred. Flippin filed the instant appeal challenging, among other things, the Superior Court's ruling that Flippin was afforded adequate due process.

In Skelly v. State Personnel Board, 15 Cal.3d 194 (1975), the California Supreme Court held that in order to satisfy due process, a public agency considering disciplinary action against a permanent public employee must afford the employee certain pre-removal safeguards, including:

  • Notice of the proposed disciplinary action;
  • The reason(s) for the proposed disciplinary action;
  • A copy of the charges and materials upon which the proposed disciplinary action is based; and
  • The right to respond to the charges either orally in writing.

In this case, Flippin argued that he was denied due process because Sharp was not an impartial Skelly officer. In making this argument, Flippin relied on the holding in Titus v. Civil Service Commission, 130 Cal.App.3d 357 (1982). In Titus, the Court held that "having the same person who originally imposed the discipline also review the decision" is a violation of due process. Flippin argued that this quotation plainly forbids someone who performed a disciplinary investigation from also serving as the Skelly officer.

The Court of Appeal disagreed with Flippin, and held that he was afforded adequate due process when Sharp was designated as his Skelly officer. In reaching this conclusion, the Court clarified that the quotation Flippin relied upon in Titus applies to post-deprivation administrative appeals (i.e. post-disciplinary arbitration, civil service commission hearing etc.) not Skelly hearings.

LEG Practice Advisor: This case clarifies that there is no due process violation when the individual who initially recommends discipline also serves as the Skelly hearing officer.

If you have any questions, please feel free to contact Jesse Lad or Art Hartinger.

Contact

Arthur A. Hartinger
Principal
E-mail
510.808.2000

Art Hartinger is one of California’s leading labor and employment attorneys.  He represents public and private clients in complex state and federal litigation pertaining to all types of labor and employment issues, including California and U.S. Constitutional Law, the Fair Labor Standards Act (FLSA),Title VII, Title IX, the Fair Employment and Housing Act (FEHA) and the Americans with Disabilities Act (ADA).

Jesse Lad
Senior Associate
E-mail
510.808.2000

Jesse Lad defends clients in labor and employment law issues involving claims of harassment, discrimination, retaliation, and wrongful discharge, as well as wage and hour matters. He also provides advice on these and other matters arising under federal and state laws, including discipline, employee privacy, medical leave, labor relations and collective bargaining. Jesse serves as lead employment law counsel and chief labor negotiator for numerous cities and special districts in California and regularly represents public agencies in arbitrations and administration hearings.