Superior Court Judge Orders Department to Release Withheld Skelly Documents

Posted by Kasey Christopher

On October 19, 2001, the Honorable Lloyd G. Connelly issued an alternative writ commanding the department to comply with the Skelly request or show cause before the court why it was not obligated to do so. He later ordered the parties to submit supplemental briefs on whether Wyley had failed to exhaust his administrative remedies.

City’s Practices Violated Peace Officer Due Process Rights: Due process requires, at a minimum, that a permanent public employee against whom dismissal is proposed receive a copy of all materials upon which the proposed discipline is based and an opportunity to respond to those materials at a pre-deprivation administrative hearing, commonly referred to as a “Skelly hearing.” (Skelly v. State Personnel Board (1975) 15 Cal.3d 194, 215.)

The right to “a copy of . . . the materials upon which the action is based” has been interpreted by the courts and the State Personnel Board to mean a copy of all materials reviewed by the appointing authority before proposing discipline. (See, e.g., Parker v. City of Fountain Valley (1981) 127 Cal.App.3d 99; Ethel Warren (1999) SPB Dec. No. 99-09.) An employee is entitled even to those materials which are exculpatory or mitigating so the employee may prepare a proper defense to the allegations.

But the city of Sacramento consistently refused to provide accused employees with investigative materials related to discipline, although the Skelly officer, hearing a pre-disciplinary appeal, was allowed to review the documents and ask the employee questions about the contents. The practice allowed the department to conceal opinions, analyses, and recommendations which did not support the adverse action, thereby depriving employees of mitigating or exculpatory evidence to raise at the Skelly hearing.

Without the opinions, analyses, and recommendations, an accused employee was left to guess at the chief’s rationale for the severity of the discipline imposed.

The city’s practices not only violated officers’ procedural due process rights to the disciplinary materials but violated the POBR as well. Under Government Code section 3306.5, enacted January 2001, law enforcement agencies must provide peace officers access to any information in the officer’s personnel files “that have been used to determine that officer’s . . . termination or other disciplinary action.” The statute expressly prohibits law enforcement agencies from claiming confidentiality to conceal reports contained within the officer’s personnel file.

The city of Sacramento, attempting to avoid final adjudication over an accused officer’s right of access to the opinions, analysis, and recommendations in discipline cases, asked Judge Connelly not to rule on the issue because Wyley’s termination had been overturned and he had been awarded full back pay. On March 14, 2002, Judge Connelly ruled the issue was moot because the Civil Service Board had already granted the requested relief.

Judge Reverses Decision and Orders Documents Released: Sensing an opportunity to obtain a dispositive ruling on this persistent Skelly issue, we filed a motion for reconsideration and an amended complaint naming the Sacramento Police Officers Association as a party to the litigation.

We filed an additional pleading on April 3, 2002, advising Judge Connelly of the California Supreme Court’s ruling in County of Riverside v. Superior Court (Madrigal) (March 28, 2002) 27 Cal.4th 793. The Riverside case holds the POBR entitles peace officers to any adverse comments created by a department regardless of applicable statutory or common law privileges.

On April 24, 2002, Connelly reversed his earlier decision and issued an order compelling the Sacramento Police Department to turn over to Wyley the opinions, analysis, and recommendations from his discipline case. The crucial ruling opens the door to obtaining those documents in all future discipline cases involving city of Sacramento police officers.