Fighting Unfair Terminations: The Skelly Process and Procedural Safeguards

WILLIAM C. BAIRD
Associate
Mastagni Holstedt, APC

In disciplinary matters, peace officers often find themselves navigating a process where the deck appears stacked against them from the start. When employers rush to judgment, critical missteps can undermine fairness and due process, leaving officers to fight uphill battles to clear their names. A recent case involving a probation officer highlights the consequences of this bias and the safeguards necessary to ensure justice is served.

Background

A supervising probation officer appealed a proposed termination stemming from the officer’s arrest after a domestic disturbance. Both parties involved had been drinking, and the officer was arrested for violating Penal Code § 273.5 (Corporal Injury to Spouse). He bailed out the following morning, but as the criminal case progressed, significant issues arose with the state’s case. The alleged victim recanted her allegations, partially attributing the incident to “drinking to excess.” Ultimately, this led to the officer entering a diversion agreement in which he pled guilty to a “verbal 415,” a violation of Penal Code § 415 involving verbal conduct only, without any act of violence. Under the terms of the agreement, conviction and sentencing were deferred pending the completion of certain requirements.

The County hired an independent investigator to review the incident but sustained allegations that included a “conviction of any criminal act involving moral turpitude,” despite the officer having no formal conviction. The County also claimed that the officer was unable to report to work following his arrest due to intoxication. However, the real reason for his absence was his detention in custody, not intoxication. Furthermore, the County failed to provide two critical pieces of information before the Skelly hearing: (1) a report from the independent investigator and (2) evidence of any effort to contact the alleged victim, including the letter she wrote recanting her allegations.

Bias was an additional concern, as the initial Skelly hearing officer was the chief probation officer, against whom the officer had recently testified in an administrative investigation regarding the chief probation officer’s own misconduct. This conflict of interest raised serious concerns over the impartiality and fairness of the process.

Missteps in the Employer’s Approach

An examination of the case revealed several critical errors in the County’s handling of the matter. First, the County misrepresented the officer’s legal status by claiming he had been convicted of a crime. In reality, he had entered a diversion agreement in which he pled guilty, but sentencing — and thus the conviction — was deferred pending the completion of requirements. This mischaracterization, particularly by a probation department that should fully understand the distinction between a guilty plea and a conviction, suggested not only a predetermined outcome, but also a disregard for accurate representation of the facts. Such an error raised serious questions about whether the County’s rush to judgment overshadowed its obligation to conduct a fair and thorough review of the matter.

Second, the County incorrectly labeled the officer’s actions as a crime of moral turpitude. Determining whether an act constitutes a crime of moral turpitude is a nuanced process with significant legal implications, particularly in California and under federal law. These crimes often carry weight in immigration proceedings and require elements such as dishonesty, fraud or conduct that reflects a “readiness to do evil.” The officer’s plea to Penal Code Section 415(3), however, involved verbal conduct only and did not meet these standards.

As discussed earlier, there was no conviction in this case, but even if there had been, a verbal 415 does not involve violence, threats or deceit. Under both California Penal Code Section 13700 and federal law (18 U.S.C. § 921[a][33]), it does not qualify as domestic violence. Nor can it be used to impeach a witness’s credibility. As such, the charge does not involve moral turpitude. Nevertheless, the County’s decision to characterize this as a crime of moral turpitude suggested a deliberate attempt to inflate the charges against the officer. The misapplication of such a serious label underscores the necessity for careful legal analysis and a commitment to fairness rather than a rush to judgment. The mischaracterization also suggests that actual facts and evidence do not support the ultimate penalty of termination.

Third, the County’s allegation that the officer was unfit for duty due to intoxication was entirely unfounded. The investigation established only that he had been drinking at the time of his arrest. There was no blood alcohol test conducted, and no one who interacted with him upon his release provided evidence that he was still under the influence. In fact, there was no evidence at all to support the claim that intoxication prevented him from reporting to work. The real reason he did not report was because he was in custody. While his detention raises some legitimate concerns, the County’s decision to misconstrue the reason for his absence appears intended to overstate the purported support for the disciplinary action. This tactic was emblematic of the County’s broader pattern of overreach and willingness to distort the facts to justify the termination.

Another glaring example of the County’s mishandling of the investigation was its failure to contact the officer’s wife, a key figure in the events under scrutiny. Despite her proactive effort to write a letter to the district attorney denying that he had harmed her, no one — not the County, the hired investigator, nor any other involved party — made any effort to interview her or verify her account. This blatant omission disregarded a primary witness and undermined the credibility of the entire investigative process.

Equally troubling was the County’s use of an outside investigator, a step that might have added objectivity to the process if properly executed. In this case, the outside investigator interviewed the supervising probation officer, but when Skelly materials were provided, there were no reports or other interviews included. The County claimed that no report was provided because the investigator did not complete one. We will never know whether the County failed to request a written report or intentionally chose not to provide one as part of the disciplinary proceedings. Either scenario reflects a fundamental failure in transparency. Why involve an investigator at all if their work is incomplete or suppressed? These lapses strongly suggest that the County’s decision-making was predetermined, reducing the investigative process to a mere formality rather than a genuine effort to uncover the truth.

Finally, the initial oversight of the Skelly hearing by the chief probation officer, against whom the officer had previously provided information in an administrative investigation into her misconduct, raised significant concerns about bias. This conflict of interest only further called into question the fairness of the process, which was concerning from the outset. When this issue was brought up directly at the Skelly hearing, the County and the chief probation officer agreed to reassign the matter to the County undersheriff, someone outside the probation department, to ensure a more impartial review. This reassignment highlighted the importance of addressing potential biases to maintain procedural fairness and preserve the integrity of the disciplinary process.

The Skelly Process in Practice

Once the case was reviewed by a truly impartial Skelly officer, the process provided a meaningful opportunity to address the critical issues before a final disciplinary decision was made. The County undersheriff, acting as the new Skelly officer, agreed with our position that, while some discipline was appropriate, termination was both excessive and unjustified. Despite the County’s failure to provide a report from the independent investigator, we were able to present key evidence, including the letter from the alleged victim recanting the allegations against him.

This evidence, combined with a detailed analysis of the procedural flaws in the County’s case, ultimately led to the reduction of the proposed termination to a 40-hour suspension. A pivotal element of the hearing was our ability to challenge the County’s missteps — from the lack of evidence supporting its claims to its rush to judgment. By reframing the narrative around fairness and due process, we ensured the disciplinary action was proportionate and based on facts, not assumptions.

This case demonstrates the importance of a methodical, evidence-driven approach in exposing overreach and securing just outcomes in disciplinary proceedings.

Lessons for Peace Officers

This case highlights the vital role of procedural safeguards like the Skelly process in protecting the rights of peace officers. The structured opportunity provided by this process allows officers to challenge allegations, present mitigating evidence and address procedural missteps before disciplinary decisions are finalized. Misrepresentations, such as conflating a guilty plea with a conviction or mischaracterizing conduct as a crime of moral turpitude, demonstrate the importance of vigilance and preparedness in safeguarding one’s professional standing.

Transparency and accountability are equally essential. The County’s failure to provide key evidence, including a report from the independent investigator or statements from the alleged victim, underscores the need for thorough and impartial investigations. Advocating for access to critical information is not just about individual fairness but also about maintaining trust in the systems designed to deliver justice.

On a broader level, this case serves as a reminder that disciplinary procedures must be handled with care and precision. Peace officers must understand their rights and the mechanisms available to ensure those rights are upheld, both of which are greatly aided by the assistance of counsel. An essential part of this process is investigating the backgrounds of Skelly officers to identify any potential conflicts of interest that could compromise their impartiality. Ensuring that decision-makers are free from bias is critical to maintaining fairness and the integrity of the disciplinary process. By engaging in the process with knowledge and diligence, officers can effectively counter overreach and preserve their reputations.

Conclusion

The Skelly process remains a cornerstone of fairness in public employment, ensuring that disciplinary actions are based on facts and conducted with integrity. This case demonstrates how persistence, attention to detail and a commitment to fairness can expose procedural flaws and prevent unjust outcomes. For peace officers, understanding and utilizing these safeguards is essential in protecting their careers and upholding the principles of justice.

About the Author

William C. Baird is an associate in the Labor and Employment Department of Mastagni Holstedt, APC, and is an LDF panel attorney. He represents public sector employees in administrative and disciplinary investigations, hearings, critical incident investigations and criminal proceedings.