1. The Intent Letter
What is it?
This Skelly letter informs the employee of the intent to take a disciplinary action. It sets forth the proposed discipline, the Civil Service Rule(s) that the employee violated, and the facts upon which the charges are based. Please refer to Civil Service Rule XIII, Section 4 at https://www.smcgov.org/media/99411/download?inline=
The Intent Letter also advises the employee of the right to review any documents upon which the proposed disciplinary action is based (material relied on), and of the right to reply to the charges verbally, in writing, or both. There is a specified time frame by which the employee can invoke the right to reply; it is generally within seven calendar days from the date the Intent Letter is issued. If the employee is represented, the letter also advises them of the right to union representation.
In the next to last paragraph of this Skelly Intent Letter, you advise the employee that “”All written materials, reports, and documents upon which this action is based are attached. ” These “materials, reports, and documents” are referred to as the “materials relied on” and usually consist of counseling notes, written complaints from customers or coworkers, attendance records, interview notes, and other documentation.
The material relied on is the evidence upon which you are basing the proposed discipline, and no other material may subsequently be introduced to support the disciplinary action (unless a revised Skelly Intent Letter is issued to supersede the first).
Since the material relied on constitutes the evidence upon which you are proposing discipline, it is reasonable to expect that this material is in your possession and is readily accessed. In some instances, however, the material has not been available and long delays have occurred in providing it the Skelly meeting must be postponed allowing the employee/union time to review the material in preparation for the meeting. This delay results in a parallel delay in making a decision regarding the proposed disciplinary action.
Of more significance, the fact that the material relied upon is not available leads to the conclusion that this material was not relied on at all but was assembled after the fact to support a decision that had already been made. This is not the kind of message we want to send to employees.
To ensure you are prepared for material relied on, you should follow these steps:
- Conduct a thorough, unbiased investigation of the incident(s)
- Interview the employee(s) involved to hear their side of the story and take detailed notes
- Interview any witnesses and take detailed notes
- Assemble all documents, including notes from your interviews of the employee(s) and witnesses, into a file
It may be necessary to redact confidential material prior to it being released to the employee or their union representative to protect the identity of individuals or confidential information. This requirement usually involves the release of medical or law enforcement information that can be tied to individual persons, or of personnel records for employees other than the individual being disciplined. Any questions relating to disclosure of information should be referred to your Employee & Labor Relations representative.
Who does it?
Although the information upon which a disciplinary action is based usually comes from the employee’s direct supervisor, the Intent Letter must be signed by a manager. Normally the first level of management above the employee for whom the discipline is proposed signs the Intent Letter. Since the employee has the right to reply to the deciding official or their designee prior to the deciding official making a determination about whether to sustain the proposed action, the Intent Letter should never be signed by the department head (unless the employee works directly for the department head).
Note: Counseling/confirmation letters, letters of warning, letters of reprimand, and other forms of corrective action are normally issued directly by the supervisor.
How?
Prior to initiating disciplinary action, contact Employee & Labor Relations for guidance on drafting the letter and on determining the appropriate level of action to propose. Once it is decided to propose disciplinary action, the signed Intent Letter is delivered to the employee. Whenever possible, the letter should be hand-delivered rather than mailed to the employee. In these instances, the individual who delivers the letter to the employee should annotate a copy of the letter indicating the date and time the letter was given to the employee and sign their name. If the employee is absent without leave or otherwise not available to receive the letter personally, it should be mailed to their home address by both regular and certified mail. The individual placing the envelope in the mail should annotate a copy of the letter indicating the date and time it was placed in the mail and sign their name.
Copies of the Intent Letter should be sent to the Department Head, the hearing official (if not the Department Head), the Human Resources Director, Employee & Labor Relations as well as filed in the employee’s Civil Service and departmental personnel files.
2. The Employee’s Reply
What is it?
An employee is given the opportunity to reply, either verbally, in writing, or both, to the charges made in the Intent Letter. This reply is the employee’s chance to provide any additional information they want considered or any mitigating information they feel is important for the decision maker to know before a decision is made regarding the proposed discipline. In the reply, the employee may deny the charges, may explain mitigating circumstances, or may argue that the proposed discipline is not at the appropriate level. The employee may have a representative at this meeting. When giving the employee dates to reply verbally or in writing, give the employee seven calendar days to schedule a hearing. Give the employee ten calendar days from the date of the letter for (1) the hearing to take place and (2) the employee to provide a written response.
For non-punitive disciplinary actions, the Skelly process also affords the employee the opportunity to enter into a “Rehabilitation Plan.” This process is described in Section 7: Conduct.
Who does it?
The individual who reviews the written reply and/or hears the oral reply must be someone who has not made up their mind about the case. This does not mean that the hearing official cannot know anything about the case. It does mean that they must not have already decided that the employee is guilty of the charges and must not have already decided that the proposed level of discipline is appropriate. The hearing official can be the same individual who will make the decision to take or not take the proposed discipline, or the deciding official can ask someone else to hear the employee’s reply and make a recommendation. If the responsibility of hearing the reply is delegated to someone other than the deciding official, that individual must be in a position to make an independent recommendation to the deciding official (they cannot work for the individual who proposed the discipline.)
How?
In the written or oral reply, the employee responds to the charges and facts contained in the Skelly Intent Letter. The employee may question the factual accuracy of the charges, may raise issues of inconsistency with other similar cases, or may raise mitigating circumstances which they feel explain or excuse their actions. An employee may also acknowledge the accuracy of the charges but argue that a lower form of discipline is appropriate.
The deciding official must consider the issues raised in the employee’s reply. The deciding official may need to further investigate the matter; for example, if new information is brought to light. The deciding official may also consider the individual’s demeanor at the hearing, considering such factors as sincerity, remorse, and the employee’s acknowledgement or failure to acknowledge their responsibility in the matter. The deciding official then makes a determination to sustain, mitigate, or overturn the proposed discipline.
If the responsibility of hearing the reply has been designated, that individual considers all of the above factors and then makes a recommendation to the deciding official to sustain, mitigate, or overturn the proposed discipline.
3. The Decision Letter
What is it?
A letter notifying the employee that disciplinary action is being taken. The letter states the level and effective date of the discipline being taken. The letter also repeats the charges and facts laid out in the Intent Letter, with any revisions in charges/facts resulting from the Skelly Hearing.
Who does it?
The decision letter is signed and issued by a level of management above the manager who signed the intent letter.
How?
The decision letter should be hand-delivered to the employee. The manager should annotate a copy of the letter indicating the date and time the letter was given to the employee. If the employee is absent without leave or otherwise not available to receive the letter personally, it should be mailed to their home address by both regular and certified mail. It is essential that there be a clear record of the date the decision letter was issued in order to determine if a subsequent appeal or grievance is timely.
The decision may be to sustain, overturn, or mitigate (reduce to a lower form of discipline) the proposed action based on the oral/written reply, or based on the deciding official’s considerations. The deciding official can lessen or overturn the proposed discipline, but they cannot impose a higher level of discipline.
Copies of the Decision Letter should be sent to the Department Head, the Human Resources Director, Employee & Labor Relations, the Civil Service Personnel File, and the Departmental Personnel File.
In addition, if an employee is represented by either AFSCME or SEIU at the pre-disciplinary meeting (Skelly Hearing), a copy of the Decision Letter shall be provided to the union representative.