The Nuts and Bolts of Your Appeal Rights

BRETT RUTKOWSKI, ESQ.
Attorney
Ferrone & Ferrone

I was speaking with a client after a complaint interview last week. As is customary, I explained what is possible to follow after the investigation. I mentioned phrases like “Skelly hearing,” arbitration, pre-disciplinary hearing, settlements, etc. After I was done talking my client’s ear off, he responded to me by stating, “Brett, I have no idea what you just said to me.” I laughed, realizing that it was ridiculous on my part to assume my client understood the “legalese” behind this administrative process. For my client, this was their first experience in this world of complaint investigations. 

As many people have no idea what a police officer does beyond the falsehoods portrayed in the media, I, too, fell into the assumption that my client understood their appeal rights, which is the world I operate in every day. Sometimes, it is important to go back to the beginning and lay a foundation of understanding. Your understanding of your appeal rights is paramount to appreciating the tools at your disposal to fight claims calling into question your integrity and to allow you to go back to what it is you do best: protecting the community, your partners, and yourself.

The Public Safety Officers Procedural Bill of Rights Act, commonly referred to as POBRA, is like a constitution for police officers. It is designed to protect you from abusive practices from your employer during administrative investigations.¹ Beyond the protections provided during the actual interrogation, your rights to appeal are delineated either in your respective MOU or the city rules where you work. However, there is a baseline standard that you are entitled to a pre-disciplinary hearing prior to discipline becoming effective. This is commonly referred to as a “Skelly hearing.”

After the investigation is completed and a decision is made regarding the discipline the department seeks to impose, if any, you are provided with notice of these findings. You may have heard the term “notice of intent.” The keyword here is “intent.” This means that discipline cannot be imposed at this stage, as the department has only determined what they intend to do. The notice of intent is pretty much the charging document listing the department’s rationale for rendering discipline. The department also must produce its evidence of the investigation, such as witness recordings of interviews, video footage, investigator’s reports and “material upon which the action is based.”² This collection of documents and evidence is referred to as the “Skelly packet.”

Upon receiving these documents, you have a decision to make: appeal or accept the discipline. If you choose to appeal, you are afforded a pre-disciplinary hearing known as a “Skelly hearing.” It is not an evidentiary hearing where witnesses are presented. Rather, it is an informal hearing with a hearing officer, typically the chief or their proxy. They are supposed to be neutral, but case law allows that the person who initiated the complaint investigation into you can serve as the hearing officer. Typically, this is the chief or decision-maker for your department.

The Skelly hearing is often the first time the investigation is questioned by you and your representative. You can present arguments, clarify statements, introduce new evidence or request for new evidence to be examined, provide mitigating factors or poke holes in the department’s rationale. Usually, the hearing officer at a Skelly hearing does not respond. They often just sit and listen, take notes or maybe ask clarifying questions about your arguments. These hearings are not intended to be adversarial, although they can be at times. 

After the Skelly hearing, the hearing officer is to take your information into consideration. If they conduct further follow-up and gather additional evidence after this hearing, you are entitled to this additional information and afforded a second Skelly hearing prior to making the discipline effective.³ Often, there is no second Skelly hearing, and the department moves forward with either amending the discipline or imposing it. Barring any other pre-disciplinary hearings the city/county may afford in their rules or MOU, the department can make the discipline effective after the Skelly hearing. At this point, you are issued a notice of effective discipline, imposing the discipline prescribed by the department.

Once the discipline is imposed, you have another choice to make: accept it or appeal to arbitration (or whatever form of disciplinary appeal hearing set forth in your MOU and/or local rules). Please note, the discipline is effective. Your decision to appeal further does not pause the imposition of the discipline. However, arbitration can remedy it at a later time to make you whole, especially if the discipline involves a suspension or termination.

If you choose to appeal to arbitration, your city rules or MOU dictate the procedures or rules for arbitration. Some cities have arbitration heard before a commission or city council. Quite often, the matter is heard by an independent arbitrator. An arbitrator is akin to a judge who will hear the matter and ultimately make a ruling. 

Arbitration is either binding or advisory. If arbitration is binding, the decision of the arbitrator is enforced. If arbitration is advisory, the arbitrator makes a recommendation, and it goes back to a ruling body within your city, typically a commission or council. They take the arbitrator’s ruling and determine whether they agree with it or not. It has occurred when an arbitrator makes a favorable ruling for the officer, but the advisory body refused to accept it. The decision on whether an arbitration is binding or advisory is also delineated in your MOU or city rules. Again, POBRA allows your city or department to create the appeal rules as long as they are consistent with your due process rights.

If arbitration does not result in a favorable ruling, you can then file a “writ of mandate” in superior court. This is like filing a lawsuit challenging the decision and requesting the court to order the department or city to amend or overturn the discipline. At this point, the writ can navigate through the court system: superior court to appellate level to the Supreme Court.

As you can see, there is an exhaustive list of pathways to appealing discipline. The most important advice I can provide is to attack the investigation at the earliest level. Aggressive representation is necessary, especially now more than ever. Do not sit on the sidelines and wait for the investigation to be over. Your representative should be advocating for you at every level, including in your first interview. 

You spend your whole life protecting others. Now more than ever, you need people that fight to protect you!

REFERENCES

• Pasadena POA v. City of Pasadena, 51 Cal. 3d 564, 577 (1990).
• Skelly v. State Personnel Board, 15 Cal. 3d 194 (1975).
• Parker v. City of Fountain Valley, 127 Cal. App. 3d 99 (1981).