Court Approves Manager’s Dual Role As Both Investigator and Skelly Hearing Officer

June 13, 2007 by Beeson Tayer & Bodine

Public employees often are amazed to find out that their right to a due process Skelly hearing is not all it’s cracked up to be. Unfortunately, a decision by the Court of Appeal in Flippin v. Los Angeles City Board of Civil Service Commissioners, 148 Cal.App.4th 272, gives even more reason for workers’ deflated expectations. In April 2003, a customer of the Los Angeles Department of Water and Power (DWP) reported to a dispatcher that Kenneth Flippin, a DWP truck driver, was sleeping in a hammock stretched under his DWP truck. When confronted by his supervisor and the dispatcher, Flippin gave the two men “the finger.” His supervisor told him such behavior was unacceptable and instructed him to remove the hammock. Later that day, the supervisor and dispatcher noticed that Flippin had not removed the hammock from his truck, and when directed to do so, Flippin answered with a snide remark. John Sharp, a DWP manager, investigated the incidents and recommended Flippin’s termination. After concluding his investigation, Sharp sent a memo to Flippin informing him of the proposed discharge, his right to a Skelly hearing, and notice that Sharp would serve as the Skelly hearing officer. The Union representative met with Sharp and another manager to discuss the discharge. Flippin did not attend the meeting but sat in an adjacent conference room. A hearing was conducted by a hearing officer appointed by the City Board of Civil Service Commissioners. At the hearing, Flippin argued for the first time that DWP had violated his right to a Skelly hearing. Sharp, he claimed, could not properly serve as a neutral Skelly hearing officer because he had both investigated the alleged wrongdoing and recommended termination. In his proposed decision, the hearing examiner determined that DWP had complied with Skelly but concluded that the discharge was excessive and should be reduced to a lengthy suspension. However, the Board rejected the reduced discipline and sustained the discharge. So Flippin petitioned the Superior Court to order his reinstatement. That court concluded there had been no violation of Skelly, and that in any event, Flippin had waived his right to a Skelly hearing. But the court also found that the discharge was an excessive punishment and ordered the Board to reconsider its determination “in a measure less than discharge.” Both sides appealed. The Court of Appeal dealt Flippin a double blow. It agreed with the trial court that Flippin’s Skelly right had not been violated, and that he had waived it. Then, to make matters even worse, the appellate court reversed the trial court and upheld Flippin’s discharge. The Court found that Flippin had waived the right “to challenge Sharp as an appropriate Skelly hearing officer” for two reasons. First, he had failed to raise an objection to the process until seven months after the hearing had been scheduled, which denied DWP an opportunity to respond to the objection and possibly to do something about it. Second, Flippin forfeited his right to challenge Sharp’s dual role because he had chosen not to attend the Skelly hearing. But, even if Flippin had not waived his right to a Skelly hearing, the Court found nothing improper about an official who both conducts an investigation and presides over the employee’s Skelly hearing.

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