What Is a Skelly Hearing?

Where the right comes from

The right comes from Skelly v. State Personnel Board, decided by the California Supreme Court in 1975. The court held that a public employee with a property interest in continued employment cannot be deprived of it without due process, and that some of that process has to come before the discipline takes effect, not only after.

That phrase, property interest, is doing real work. Public employment in California is often not at will the way private employment is. If your agency can only discipline you for cause, the law treats your job as something you have an interest in, and the Constitution requires fair process before it is taken away.

Private employees have nothing like this. That is worth knowing, because most advice you will find online about responding to discipline is written for at will workers who have no pre discipline rights at all.

Who gets a Skelly hearing?

A permanent public employee who can only be disciplined for cause. In most agencies that means you have completed probation. It is not limited to state workers either, because what matters is the property interest in your job, not which kind of public agency employs you.

School district staff are the main exception to all of this. Teachers and classified school employees are disciplined under the Education Code rather than a civil service scheme, so if you work for a district, read how school district discipline works instead.

The size of the discipline matters too. Agencies commonly reserve the full process for serious actions such as discharge, demotion, or a suspension over a set number of days, and handle smaller discipline through a lighter procedure. Your probationary status is also worth confirming rather than assuming, because agencies sometimes extend a probationary period and the employee never registers it.

If you are still on probation

The short answer is that you do not get a full Skelly hearing. California courts have held for decades that a probationary employee has no vested property interest in the job, so there is no constitutional right to a hearing before being rejected during probation. That is the general rule and it is well settled.

It is also not the end of the story, and this is the part that rarely gets explained to workers. Four real protections survive.

• You still get notice. For state employees, the same regulation that implements Skelly applies to rejection during probation. That means five working days of written notice, the reasons, the supporting materials, and a chance to respond, even though it is not a constitutional hearing.
• A name clearing hearing. If you are let go on charges that stigmatize you, such as theft or dishonesty, you may be entitled to a hearing to answer them. That right comes from your liberty interest rather than a property interest, and the remedy is the chance to clear your name rather than reinstatement.
• POBRA, if you are a peace officer. Government Code section 3304(b) gives probationary safety officers an administrative appeal, though courts treat it as serving the name clearing purpose rather than as a full civil service appeal.
• Your agency may give you more. A city charter, local civil service rules, or your MOU can grant probationary employees rights the Constitution does not require. Those are worth reading before you assume you have none.

One thing probation never allows is an illegal rejection. You cannot be rejected for a discriminatory reason, and if you work for the state you have 15 calendar days from the effective date to ask the State Personnel Board to investigate under Government Code section 19175. Be realistic about that route. The burden is on you, the rejection is presumed to have been made in good faith, and a 2021 decision held that a single substantiated reason defeats reinstatement no matter how many of the other stated reasons fail.

If you are a peace officer or a firefighter, you have a separate and additional layer of rights on top of Skelly. Those come from the Public Safety Officers Procedural Bill of Rights Act (opens in a new tab) at Government Code section 3300 and following, and from a parallel statute for firefighters, including limits on how long an agency has to investigate and specific rules for interrogations.

What your agency has to give you first

Before discipline takes effect you are generally entitled to four things. Written notice of the action your agency proposes to take, a statement of the reasons for it, a copy of the charges and the materials the agency is relying on, and a real opportunity to respond.

The third one is the one people leave on the table. You are entitled to the materials the agency based its decision on, not just a summary of them. If your notice refers to an investigation report, witness statements, timekeeping records, or camera footage, ask for them in writing and ask before you respond. Responding to charges without having read what is behind them is the most common way a Skelly opportunity gets wasted.

The response itself is usually informal. It may be a meeting with a designated Skelly officer, a written response, or both. The officer is typically someone from the agency who was not involved in the underlying decision. It is not a hearing with witnesses and cross examination. That comes later, if it comes at all.

How long you have to respond

It depends on who employs you. If you work for the State of California, a regulation sets a floor of five working days. If you work for a county, a city, or a district, the window comes from that agency’s own rules or your memorandum of understanding, and it is often measured in days rather than weeks.

For state employees the rule is title 2, section 52.6 of the California Code of Regulations. It requires written notice at least five working days before a proposed adverse action takes effect, and that notice has to include the reasons, a copy of the charges, a copy of all the supporting materials, notice of your right to representation, and notice of your right to respond. Medical actions get 15 calendar days.

Local agencies are not covered by that regulation and set their own windows, which vary more than people expect from one public employer to the next. If you work for a county or a city, no article can give you your number. Your notice, your MOU, and your agency’s personnel rules are where the real answer lives, and the date printed on your notice is the one to work backward from.

Some agencies also allow service of these notices electronically. If yours does, the clock can start from an email you have not opened yet, which is a good reason to check the account your employer has on file for you while something is pending.

How to make your Skelly response count

Ask for the materials, respond in writing, and be specific. A Skelly response is not a conversation about whether your supervisor is fair. It is your first and sometimes only chance to put your version of the facts into the record before a decision is made, and everything you say there follows you into any appeal.

A written response is worth doing even where a meeting is offered, because it fixes exactly what you said. In our experience the responses that land are the ones that engage the specific charges one by one, name the documents or witnesses that contradict them, and correct factual errors in the notice rather than arguing about motive.

Say your notice states you were absent without leave on three dates, and you have approved leave slips for two of them. That is worth far more in a Skelly response than a general statement that the discipline is unfair. Hypothetically, correcting two of three charges can change the level of discipline even where it does not eliminate it.

Bring representation if you can. Your agency’s rules or your MOU govern whether you may bring a union representative or a lawyer, and most allow it. If something you say could also matter in a criminal matter, that is a specific reason to get advice before you respond at all.

What happens after a Skelly hearing

Your agency decides whether to impose the discipline as proposed, reduce it, or drop it. If discipline takes effect, a separate clock starts for appealing to your civil service commission or personnel board. That appeal deadline is usually short, and missing it is a common and costly mistake.

Those appeal windows are also set by each agency rather than by state law, and they vary more than people expect between one public employer and the next. Counting in business days versus calendar days can be the difference between a live appeal and a dead one. Read the notice of discipline for the deadline and count carefully.

If your agency skipped the Skelly process entirely, raise it early. California courts generally treat a Skelly violation as a procedural defect with its own remedy, often back pay covering the period the process was denied, rather than something that erases the discipline. It can still matter a great deal to how the case resolves.

What a Skelly hearing does not protect

Winning your Skelly response does not preserve your right to sue, and this is where public employees lose cases they should win. If you go on to a civil service appeal and the commission rules against you, that ruling can be treated as binding in a later discrimination lawsuit unless you challenge it in court in time.

The California Supreme Court has held that a public employee may choose between the civil service route and a discrimination claim under FEHA, the Fair Employment and Housing Act, and is not required to exhaust civil service remedies first. But once you have gone through a civil service hearing and lost, undoing those findings takes a petition for administrative mandamus filed in superior court, and the window for it is short.

In other words, the choice you make after your Skelly hearing can matter more than the hearing did. Our guide to suing a government employer in California walks through that decision, the government claim you may have to file first, and the deadlines that go with each route. If the discipline followed you reporting something, our retaliation and whistleblower page is the place to look next, and if it ended in termination, our wrongful termination practice covers what those claims involve.

This is more procedure than anyone should have to manage while their job is on the line, and it is exactly the part a lawyer handles for you. You can reach our office at 818-585-1267.

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