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By Castillo Harper, APC | September 7, 2023 | Posted in PORAC LDF News

The Skelly Presentation: Strategic Disclosures Ahead of Evidentiary Hearing

Associate Attorney
Castillo Harper, APC

After receiving a call from my client that she received a Notice of Intent to Terminate, I awaited documents outlining all my client’s alleged misconduct. My client’s interview had been several hours long, and I expected that this meant the investigation and follow-up would be equally thorough. The complainant had alleged almost 30 incidents of misconduct, including discrimination, harassment and general conduct unbecoming.

The Department had hired an outside investigator to handle the investigation. It was clear from the beginning of this process that the outside investigator was unfamiliar with investigations into public employees. The investigator’s lack of experience with peace officer investigations made it imperative that Department members received representation. On several occasions, I had to tell the investigator to respect my client’s rights under the Peace Officers Bill of Rights Act (POBRA), California Government Code §3300 et. seq., and even rescheduled an interview so that the investigator could research the information I was providing them.

Once the investigation was complete, the investigator continued their unprofessional behavior. The outside investigator lied to the Department, stating that there were no recordings of their witness interviews. Upon my firm’s review, multiple witnesses confirmed their interviews were recorded.

I received a 60-page investigation report. The report sustained every allegation against my client and led the Department to sustain allegations that had not been alleged in my client’s original notice. The investigator sustained allegations for incidents that had occurred after my client was placed on administrative leave, failed to identify the complainant’s unlawful behavior, used witnesses that had not been hired to confirm the complaint’s allegations and used false names for Department staff. It was clear in reviewing the investigation report that my client’s Skelly was going to be an important opportunity to discuss the investigation with the Department’s interim chief.

Preparation for the Skelly hearing was imperative. I set to work, with the help of my client, to isolate every single incident of alleged misconduct. During the preparation, I identified important witnesses that the investigator had failed to interview. I obtained character letters and declarations from these witnesses, outlining the misinformation that the complainant had provided to the investigator. I had one witness explain the unprofessional and biased questioning they experienced in their interview.

At Skelly, I presented the elements of just cause to the chief. I outlined the Department’s policies on discipline and exactly what standard the chief’s decision would be held to. I outlined the allegations and proposed defenses, and then individually discussed each allegation of misconduct. At the end of the Skelly, my client explained to the interim chief that she took full responsibility for any deficiency in her work, and she outlined the steps she planned to take to correct the behavior.

The Skelly officer commented that he appreciated my thoroughness and the preparation I completed prior to the hearing. Ultimately, my client’s termination was overturned, and she returned to work the following week.

What this case shows: The preparation work prior to a Skelly hearing can be the difference between upheld discipline and modification. Departments and employee advocates should not assume that an investigator’s report is accurate, thorough or even unbiased. Take the time to really evaluate the benefits and detriments of a pre-disciplinary hearing to make the best decision for your case!

About the Author

Montana L. Massone is an associate attorney at Castillo Harper, APC, where she practices all areas of employment defense, criminal defense and general counsel.