When misconduct surfaces in public sector workplaces, the investigation that follows may become the cornerstone of any subsequent disciplinary action. For California public employers, means the investigation must also be able to withstand the scrutiny of Skelly Hearings—the pre-disciplinary due process requirements that can make or break your disciplinary decisions.
The Skelly Framework: More Than Procedural Compliance
Named after the seminal 1975 California Supreme Court decision in Skelly v. State Personnel Board, Skelly Hearings are a mandate, not merely an administrative matter. The Court recognized that permanent public employees possess a property interest in their employment requiring due process protection before—not after—disciplinary action takes effect.
Understanding what Skelly Officers evaluate is critical to investigation strategy. The Skelly Officer doesn’t conduct a de novo review or substitute their judgment for yours. Instead, they assess whether your investigation provides reasonable grounds to believe: (1) the employee engaged in the alleged misconduct, and (2) that misconduct supports the proposed discipline. This standard—reasonable grounds—sets the bar for investigation quality.
The Disclosure Imperative
Perhaps no aspect of Skelly rights carries greater investigative implications than the requirement to provide employees with “all materials upon which the disciplinary action is based.” This Skelly package becomes your investigation’s public face, reviewed not only by the employee and their representative, but potentially scrutinized in subsequent administrative hearings or arbitration.
Each document, interview summary, and piece of evidence that informed the employer’s disciplinary decision must be disclosed. This transparency requirement demands that investigations be conducted with the understanding that all work product may face later review. Speculation, inflammatory language, or gaps in documentation that might be overlooked in private deliberations may become vulnerabilities when later disclosed.
Strategic Investigation Framework
Foundation: Investigative Independence and Credibility
The credibility of your disciplinary process relies on neutral investigator selection. California regulations require Skelly Officers to be managers above the employee’s supervisor who weren’t involved in the underlying incident or disciplinary decision. Apply this same independence standard to your investigators.
It is also wise to document investigator qualifications and independence clearly. For high stakes matters involving senior personnel, discrimination claims, or cases likely to generate significant attention, consider external investigators who bring both expertise and unquestionable neutrality.
Documentation Excellence: Building Your Evidentiary Record
Comprehensive documentation isn’t about creating voluminous files—it’s about building a coherent narrative supported by reliable evidence. Every investigation should produce:
- Detailed Interview Protocols: Investigation summaries that capture not just what was said, but the context, demeanor, and credibility indicators. Document when interviews were conducted, who was present, and any limitations or unusual circumstances.
- Evidence Chain of Custody: Clear protocols for identifying, collecting, preserving, and analyzing physical and electronic evidence. This includes email communications, security footage, personnel files, and any other relevant materials.
- Timeline Development: Chronological reconstruction of events that identifies key dates, witnesses, and evidence sources. This timeline becomes crucial for identifying inconsistencies and corroborating witness accounts.
Procedural Rigor: Due Process in Practice
While employees aren’t entitled to representation during investigations per se, procedural fairness demands adequate notice and meaningful opportunities to respond. It may also be that external investigators will offer employees to bring a representative or advisor to the interview, to protect the integrity of the process and assist in creating rapport and a safe environment for the witness to relay their story. Accused employees must be informed of the general nature of allegations while balancing the preservation of investigative integrity. Provide opportunities for them to present their perspective, identify relevant witnesses, and offer documentary evidence.
This procedural fairness serves dual purposes: it enhances investigation completeness while demonstrating the employer’s commitment to fair process—a crucial consideration for Skelly Officers evaluating the approach taken.
Policy Precision: Connecting Conduct to Consequences
Vague allegations will likely fail Skelly scrutiny. The investigation must establish clear connections between specific employee conduct and identified policy violations. This requires:
- Precise identification of applicable policies, rules, or regulations
- Detailed analysis of how the employee’s conduct violated specific provisions
- Clear articulation of why the proposed discipline fits the violation
Generic references to “unprofessional conduct” or “policy violations” are also unlikely to survive careful review. Specificity in allegations requires specificity in investigation.
Additional Strategic Considerations
Risk Assessment and Resource Allocation
Not every investigation requires the same level of intensity. Develop frameworks for assessing investigation complexity based on factors like:
- Severity of alleged misconduct and proposed discipline
- Potential legal exposure and reputational risk
- Complexity of factual issues and number of witnesses
- Employee’s position and potential impact on operations
- Likelihood of subsequent legal challenges
This risk-based approach allows strategic resource allocation while ensuring appropriate investigation depth.
Technology and Modern Investigations
Contemporary workplace investigations increasingly involve electronic evidence—emails, text messages, security systems, and digital records. Develop protocols for preserving and analyzing electronic evidence that meet both legal requirements and technical standards. Consider partnering with forensic specialists for complex cases involving data recovery or authentication issues.
Training and Quality Assurance
Invest in comprehensive training programs that go beyond basic legal compliance. Effective training should address:
- Interviewing techniques and bias recognition
- Evidence evaluation and credibility assessment
- Documentation standards and report writing
- Legal updates and case law developments
- Practical scenarios and case studies
Implement quality assurance mechanisms including peer review processes, supervisor oversight, and periodic audit of investigation files. These systems not only improve individual investigations but build organizational capacity and consistency.
Integration with Broader HR Strategy
Skelly-proof investigations shouldn’t exist in isolation from broader human resources strategy. Consider how investigation practices align with:
- Employee relations and workplace culture initiatives
- Risk management and legal compliance programs
- Training and professional development efforts
- Performance management and corrective action protocols
This integrated approach ensures investigations serve not just disciplinary purposes but contribute to overall organizational health and legal compliance.
Practical Implementation Recommendations
- Develop Standardized Protocols: Create detailed investigation procedures that ensure consistency while allowing flexibility for case-specific circumstances. These protocols should address everything from initial complaint intake through final report preparation and Skelly package assembly.
- Build Professional Networks: Establish relationships with external investigators, forensic specialists, and subject matter experts before you need them. Emergency selections rarely produce optimal results.
- Document Everything: From the initial complaint through final disciplinary decision, maintain detailed records of all investigative steps, decisions, and rationales. This documentation may prove crucial in subsequent proceedings.
- Regular Legal Updates: Stay current on evolving case law, regulatory changes, and best practices through continuing education, professional associations, and legal counsel consultation.
Conclusion: Excellence as Risk Management
Building Skelly-proof investigations represents more than legal compliance—it’s a strategic investment in organizational integrity and risk management. Thorough, impartial, and well-documented investigations don’t just survive Skelly Hearings; they provide confidence that disciplinary decisions rest on solid foundations and can withstand whatever scrutiny may follow.
The goal isn’t merely procedural compliance but investigative excellence that serves justice, protects organizational interests, and maintains public trust in governmental operations. When investigations meet these standards, discipline proceeds not just with legal authority but with moral credibility—the foundation of effective public sector management.
In an era of increased scrutiny of public sector operations, excellence in workplace investigations isn’t optional—it’s essential for maintaining the public trust that underlies all governmental authority.