Chapter 3 – Personnel, Training, and Employee Relations

33030.22 Adverse Action Documentation

• Adverse action documentation shall be completed, in all cases, prior to the statute of limitations expiration date. The Vertical Advocate shall monitor due dates and provide legal advice to the Hiring Authority and the EROEmployee Relations Officer/Disciplinary Officer for all cases. The Vertical Advocate shall draft the Notice of Adverse Action for all designated cases and shall forward a draft Notice of Adverse Action to the SAIG for cases monitored by the BIR. For all other cases, the Vertical Advocate shall consult with the EROEmployee Relations Officer/Disciplinary Officer upon request regarding other Notices of Adverse Action drafted by the EROEmployee Relations Officer/Disciplinary Officer.

• When drafting a Notice of Adverse Action the EROEmployee Relations Officer/Disciplinary Officer, in consultation with the Vertical Advocate, shall ensure the following:

  • Each cause(s) for discipline supported by the facts is included.

  • At least one Government Code section is cited as a cause for each act of misconduct.

  • All the facts in support of the causes for discipline are included.

  • All facts fall within the statute of limitations.

  • All facts are alleged with sufficient specificity to meet the requirements of SPBState Personnel Board (see CalHR) Precedential Decision No. 91-04, In re: Korman.

  • When required under the Bodiford Settlement, the employee was served with a Preliminary Notice of Adverse Action and all supporting documentation, at least 24- hours prior to service of the Notice of Adverse Action.

  • If the subject employee is a peace officer, he or she is being served with the Notice of Adverse Action within thirty (30) calendar days of the decision to take disciplinary action.

  • The employee’s rights and entitlements are included, as follows:

    • Skelly Rights:

      • Notice of the proposed action.

      • Notice of the reasons for the proposed action in writing at least five (5) working days before the adverse action becomes effective [twenty (20) calendar days for managers].

      • A copy of the charges on which the action is based in sufficient detail for the employee to prepare a defense.

      • A copy of all materials upon which the action is based, including any documents, photographs, tape recordings, video tapes, complete investigative reports (e.g., reports and other materials that the Hiring Authority relied upon in forming the decision to take the action).

      • The right to respond to a manager who was not involved in the investigation of the action currently being taken against the employee.

      • The right to be represented when responding to the Hiring Authority imposing the discipline.

  • Right to appeal to the SPBState Personnel Board (see CalHR).

• The notice includes other appropriate considerations, such as:

  • Training received;

  • Prior counseling received;

  • Prior discipline;

  • A statement that peace officers are held to a higher standard with regard to honesty and integrity and that his or her actions have not met this standard.