Government and Administrative Law

State and federal administrative bodies could not function without the assistance of public sector employees. These people often dedicate their entire careers to working for the government. Just as in the private sector, however, disputes can arise between government employers and employees over a wide variety of issues, including allegations of misconduct, insubordination, or failure to perform duties, and more complex matters involving constitutional due process. Northern California public sector employment law attorney Michael S. Biggs has represented many government employees in state and federal court proceedings. He also can assist people who need a personal injury lawyer or guidance in matters related to business litigation or trust litigation.

With over a decade of litigation experience, Mr. Biggs has a demonstrated record of tenacity and confidence in the courtroom. Comfortable with handling complex matters, he maintains clear communication with each of his clients, carefully explaining their options at each stage of the legal process. As a bold problem solver, he recognizes the importance of thinking outside the box, and he is committed to providing government employees with the benefits of his keen tactical judgment, strategic focus, and investigatory skills. From his main office in San Rafael, a staffed office in Downtown San Francisco, and a satellite office in Walnut Creek, he represents people throughout Marin, Sonoma, Solano, and Contra Costa Counties.

Exercising Your Rights as a Public Sector Employee

Due to the special nature of the relationship between a government employer and an employee, the law has developed a number of procedural protections and rules that apply when adverse allegations are made by management against employees that work for public entities such as law enforcement, the fire service, educators and healthcare providers. Many of these rules arise in the context of an employer’s investigation of an employee’s alleged wrongful conduct. Knowing your rights during this stressful and uncertain time can be crucial.

One of an employee’s central rights is based on the Weingarten rule, which states that an employee has the right to obtain representation from a union when two factors are satisfied. First, the employee must be subject to an investigatory interview, which is a proceeding used to obtain information from the employee that could facilitate disciplinary acts against him or her. Second, the employee must have a reasonable belief that his or her statements during the interview could result in a disciplinary action or other adverse result against him or her. There are some situations in which the employee may also have the right to request a private attorney during the interview, such as when the allegations involve conduct that could result in criminal liability.

Another key protection for employees is called the Lybarger right or admonishment. Like defendants in a criminal proceeding, employees under investigation have the right to remain silent when under interrogation. According to the Lybarger doctrine, whenever a manager or supervisor interviews an employee, and it is evident that the employee could be charged for criminal conduct as a result of the alleged misconduct, or the employee declines to respond to the interrogation on the basis that his or her answers could be self-incriminating, a certain admonishment must be given at the outset of the interview. First, the employee must be informed that his or her silence may be taken as insubordinate conduct and lead to further administrative disciplinary actions. The employee must also be told that any statements he or she makes under the interrogator’s threat of bringing an administrative disciplinary action against the employee cannot be used against him or her during a criminal proceeding.

After the admonishment is given, the employee has two choices. First, he or she can refrain from answering questions and potentially face further disciplinary action. Or the employee can cooperate with the understanding that the employer may use his or her statements in an administrative hearing, but not in a criminal proceeding. All cases bring unique facts, and an attorney should always be consulted directly and personally as to whether or not any of these rules apply to an individual case. Public sector employment law lawyer Michael Biggs helps Northern California residents understand and assert their rights.

Protecting Your Interests During Disciplinary Actions

A third key procedural rule for public sector employees under allegations of misconduct is the Skelly hearing, which allows public sector workers to respond to any allegations made against them before a course of disciplinary action is finalized. This right applies to any disciplinary action, which is defined broadly to include any incident involving suspension, demotion, dismissal, or any reassignment that results in lower pay without the employee’s prior voluntary written consent. This right does not apply to a layoff that results from the employer’s lack of ability to pay compensation. 

The Skelly doctrine prevents an employer from taking any disciplinary action against an employee without providing prior notice of the allegations and a proposed course of disciplinary action. The notice must be in writing and must include certain information, such as the employee’s right to obtain and review the evidence and documentation used in reaching the disciplinary result and the specific rules or laws that the employee has allegedly violated. The employee must then be given an opportunity to address the allegations and defend his or her position at a hearing known as a Skelly hearing. After the hearing, the employer must render a written decision that states whether the employer will proceed with the course of disciplinary conduct or rescind the proposed course of action. At no time, however, can the employer enact a penalty or disciplinary action that is more severe than the proposal outlined in the written notice.

If the employer proceeds with a disciplinary action following the hearing, it must provide the employee with a written document detailing certain information like the specific charges, the statutes or rules implicated, and the date the action will take effect. In the event that an employer fails to comply with the Skelly process, an employee can bring a lawsuit against the employer to enforce his or her rights.

Explore Your Options with a Public Sector Employment Law Attorney in Northern California

An employer’s actions can give rise to civil liability in a number of other instances, including wrongful termination, discrimination, and breach of contract. Both California and federal laws place certain requirements on claimants wishing to pursue legal action against a government employer. As a result, it is critical to understand the procedural rules and follow them appropriately, which makes it essential to enlist a knowledgeable attorney early in the process.

Northern California public sector employment law lawyer Michael S. Biggs is ready to guide government employees through complicated disputes related to their employment. He understands the nuances and technicalities of the issues that may arise, and he combines toughness in the courtroom with sensitivity to each client’s individual needs. Mr. Biggs serves people throughout Northern California, including in Marin, Sonoma, Solano, and Contra Costa Counties. Call us at 415-789-5823 or contact us online to set up a free consultation. The Law Offices of Michael S. Biggs also is available if you need a business law attorney or representation in a trust litigation or personal injury matter.

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