UC Davis

Employee and Labor Relations

PRE-ACTION REVIEW PROTOCOL

Revised: September 5, 2018

Career PSS Employees.…………………………………………………………………..1

MSP Employees…………………………………………………………………………...6

CAREER PROFESSIONAL AND SUPPORT STAFF

LEGAL ENTITLEMENT
The California Supreme Court has ruled that public employees are entitled to a fair process
before serious discipline is imposed. At UC, career Professional and Support Staff (PSS)
employees are given the opportunity for a pre-action review, often referred to as a “Skelly”
review, to ensure the fairness of the process.

PROTECTIONS
Before serious discipline may be imposed, career (i.e., non-probationary) PSS employees must
receive:
a) Proper notice of the intended disciplinary action, and
b) A fair chance to respond to the charges against them.

Serious Discipline includes

• Unpaid leave of 10 days or more;
• Suspension without pay for a period of 5 days or more; 1
• Demotion;
• Dismissal or termination; or
• Allegations which are sufficiently onerous to seriously impact the
employee’s ability to find future work in his/her chosen career.

PROPER NOTICE – LETTER OF INTENT

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Except in the event the applicable collective bargaining agreement or policy states otherwise, in which
case the terms of the collective bargaining agreement or policy shall govern.

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Notice of the intended disciplinary action must be given to the employee before the action is
implemented.

The notice of intent must set forth the reasons for the proposed disciplinary action with sufficient
detail so that the employee understands and can provide an adequate response.
1. The notice of intent must include or make available the evidence on which the
disciplinary authority relied in coming to the decision to take the action.
2. The notice of intent must also advise the employee that they have the right to respond, in-
person or in writing, to a reasonably neutral party (the “Skelly Reviewer”) before the
discipline will be imposed. The notice must identify the Skelly Reviewer and indicate the
time that has been set aside for a meeting with the Skelly Reviewer (and that any
materials the employee intends to submit must be provided by that date and time).

In order to protect the employee’s privacy, the notice of intent is not provided to the Skelly
Reviewer unless and until the employee contacts the Skelly Reviewer and requests a review. The
employee is provided the Skelly Reviewer’s contact information and informed of their right to a
pre-disciplinary review. Once the employee contacts the Skelly Reviewer, the Skelly Reviewer
informs the Employee & Labor Relations office which then sends the Skelly Reviewer the notice
of intent and supporting documents.

FAIR OPPORTUNITY TO RESPOND

An employee facing serious discipline must have the chance to present his or her side of the
story to a reasonably neutral party, often referred to as the “Skelly Reviewer.” Employee &
Labor Relations will assist the department to select an appropriate Skelly Reviewer.
1. The Skelly Reviewer need not be outside of the reporting chain of the impacted
employee;
2. The Skelly Reviewer should have sufficient knowledge about the work rules, policies, or
professional standards that are alleged to have been the subject of the employee’s
misconduct to adequately consider the need for disciplinary action, and the impact on the
employee if disciplinary action is issued in error;
3. The Skelly Reviewer should be at a sufficient level of authority that he or she does not
feel compelled to agree with the disciplinary authority’s proposed disciplinary action.

The role of the Skelly Reviewer is to evaluate

1. Whether there is a reasonable basis to believe the employee engaged in the
performance failure or misconduct charged, and
2. Whether the proposed disciplinary action appears to be within the range of
reasonable penalties.
The employee may submit a response in writing, in an in-person or telephone meeting, or both.

The employee is responsible for attending the scheduled meeting, or providing a written response
to the Skelly Reviewer. The Skelly Reviewer does not have responsibility for initiating contact
with the employee. If the review period passes and the employee does not contact the Skelly

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Reviewer, the Skelly Reviewer should inform Employee & Labor Relations. In such cases, the
Skelly Reviewer does not perform a review.

SKELLY REVIEWER RESPONSIBLITIES

Put simply, the Skelly Reviewer’s job is to ensure the employee has the opportunity to respond to
the charges against them.

“[The Skelly meeting]...should be an initial check against mistaken decisions—

essentially, a determination of whether there are reasonable grounds to believe that the
charges against the employee are true and support the proposed action.” 2

The Skelly Reviewer should not conduct an investigation or disregard a University investigator’s
findings. The Skelly Reviewer need not decide or resolve all evidentiary disputes, or determine
whether he or she would take the same action in the shoes of the disciplining authority.

Before the Meeting

The Skelly Reviewer should review the notice of the intended action and the supporting
documents, the Skelly Protocol, the applicable University policy and collective bargaining
agreement provisions, and any written response submitted by the employee in advance of the
meeting, as well as any documents the employee has submitted in support of that response.

Attendance at the Meeting

The employee is entitled to have a representative present when he or she meets with the Skelly
Reviewer.
1. The Skelly Reviewer may request the attendance and assistance of a member of the
Employee and Labor Relations staff.
2. The employee may bring witnesses to speak with the Skelly Reviewer one at a time. The
Skelly Reviewer has the discretion to exclude any witness if he or she determines the
witness has only non-relevant information, or information that has already been presented
by others.

MEETING PROCESS
The Skelly Reviewer should open the meeting by explaining that this is the opportunity for the
employee to provide evidence and information enabling the Skelly Reviewer to evaluate:
1. Whether there is a reasonable basis to believe the employee engaged in the performance
failure or misconduct charged, and
2. Whether the proposed disciplinary action appears to be within the range of reasonable
penalties.

2
Cleveland Bd. of Educ. v. Loudermill (1985) 470 U.S. 532, 545-546.

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The Skelly Reviewer should also explain that, upon completing the meeting, he or she will
consider the information provided and then make a recommendation with respect to the two
items for evaluation.
The Skelly Reviewer should ask the employee or the employee’s representative to respond to the
charges and advise that their response may be submitted in writing, if desired.

The Skelly Reviewer should allow the employee or the employee’s representative to present their
side of the story through documents or witnesses, and may exclude information that is
duplicative or not relevant.

The Skelly Reviewer may pose questions directly to the employee (rather than his or her
representative) if the Skelly Reviewer wishes.

The Skelly Reviewer should ask the employee appropriate questions and then give the employee
or his/her representative the opportunity to provide brief answers.

AFTER THE MEETING

The Skelly Reviewer should review all of the information and evidence provided by both sides.

The Skelly Reviewer should evaluate:

1. Whether there is a reasonable basis to believe the employee engaged in the
performance failure or misconduct charged, and
2. Whether the proposed disciplinary action appears to be within the range of
reasonable penalties.

If Recommendation is to Uphold
If the Skelly Reviewer recommends that the disciplinary action be upheld, he or she should
contact ELR, which will ask the Skelly Reviewer to prepare the recommendation letter below
(with attachments) and will submit it to the disciplinary authority. The disciplinary authority
will then issue the final corrective action letter to the employee (and the employee’s
representative, if applicable), enclosing a copy of the Skelly Reviewer’s recommendation
(with attachments).

If Skelly Reviewer has Concerns

Alternatively, if the Skelly Reviewer has questions or concerns about the proposed disciplinary
action, he or she should contact ELR, which will coordinate a discussion among the Skelly
Reviewer and the disciplinary authority to address the Skelly Reviewer’s concerns and try and
reach agreement as to the appropriate outcome. If the discussion does not result in an agreement,
ELR will ask the Skelly Reviewer to prepare the recommendation letter below (with
attachments), and will submit it with the proposed disciplinary action to an appropriate person
in the chain of authority above the disciplinary authority as determined by ELR, typically at the
level of a Dean, Associate Vice Chancellor, Executive Director, or higher, for review and a final
determination of the disciplinary outcome. That person will then issue the final corrective action

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letter to the employee (and the employee’s representative, if applicable), enclosing a copy of
the Skelly Reviewer’s recommendation (with attachments).

A typical Skelly outcome letter will read as follows:

To: Employee and Labor Relations

Re: Intent to Impose (identify proposed disciplinary action)

I write in consequence of the pre-disciplinary meeting of (date) with respect to

the letter of intent to (identify proposed discipline) of (date of letter of intent)
with regard to (name of employee). Those present at the pre-disciplinary
meeting were: _____________________________________. The documents
and materials which I have reviewed to perform this review are: (list)

After reviewing the relevant documents made available to me, and after hearing
from (employee and/or the employee’s representative) (at the pre-disciplinary
meeting/in writing), I am making the following recommendation:

Because there appear to be (reasonable/insufficient) grounds to believe (the

employee) engaged in the misconduct charged, (and because the disciplinary
action appears to be within /is outside of the range of reasonable penalties for
this conduct) I recommend that the proposed disciplinary action be (upheld or
not be upheld).

Name
Title
Skelly Reviewer (for MSPs, Pre-Disciplinary Reviewer)

cc: Disciplinary Authority

Employee
Employee representative (if any)

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MANAGERS AND SENIOR PROFESSIONALS

MSP I-VII
Managers and Senior Professionals (MSP) in Grades I-VII (or equivalent Career Tracks grades)
are similar to “at will” employees who are not afforded constitutionally mandated due process
rights when facing serious discipline. Instead, MSPs I-VII are entitled to the rights set forth in
the UC Davis Personnel Policies for Staff Members (PPSM) Section 64 – Termination and Job
Abandonment.

NOTICE OF INTENT TO TERMINATE

When an appointment is to be terminated or other serious disciplinary action is proposed, the
MSP employee shall receive written notice of intent which shall include a statement of the
reason(s) for the intended action, a copy of any materials upon which the action is based, and a
statement that the employee has a right to respond orally or in writing.

ROLE OF PRE-DISCIPLINARY REVIEWER

The pre-disciplinary reviewer’s role is to minimize the risk that the proposed action was taken in
error. In order to minimize the risk of an error, the pre-disciplinary reviewer shall review the
Notice of Intent, the supporting documents, and the employee’s response. The pre-disciplinary
reviewer shall use the process outlined in the UC Davis Skelly Protocol in conducting the review,
applying the MSP standard for taking disciplinary action set forth in PPSM 64 (see below).
After performing this review, the pre-disciplinary reviewer shall recommend that the proposed
action be upheld or not be upheld, and management shall inform the employee of the action to be
taken. If the pre-disciplinary reviewer has questions or concerns about the proposed action, he or
she should contact ELR, and thereafter follow the same process as outlined for a Skelly review, as
described above.

MSP STANDARD FOR DISCIPLINARY ACTION

As described in PPSM 64(c)(2), an MSP employee “can be terminated when, in management’s
judgment, the needs or resources of the department or the performance or conduct of the
employee do not justify the continuation of the employee’s appointment.”