By: Karen Carrera and Taylor Cole
Workplace investigations conducted by public employers often culminate in disciplinary decisions that carry constitutional, statutory and labor‑relations implications. When witness statements form the basis of investigative findings—particularly in cases involving harassment, retaliation or misconduct—employers and investigators must carefully balance due‑process and disclosure obligations against the need to protect witnesses from retaliation, intimidation or other harm. This tension is most pronounced when discipline is contemplated and the respondent employee or union requests broad access to the investigative file.
Due Process at the Pre‑Disciplinary Stage: Scope and Limits
Under Skelly v. State Personnel Board, a permanent public employee facing discipline is entitled, before the effective date of the action, to notice of the proposed discipline, the reasons for it, access to the materials upon which the action is based and an opportunity to respond to a decision‑maker with authority to modify or revoke the action (15 Cal.3d 194, 215 (1975)). Skelly establishes a constitutional floor, not a general right to discovery.
California courts have made clear that this pre‑disciplinary process does not require production of the entire investigative file. In Gilbert v. City of Sunnyvale, the Court of Appeals rejected the argument that due process entitles an employee to every document, witness statement or raw investigatory material reviewed by the investigator. Instead, the court held that Skelly requires notice of the charges, an explanation of the employer’s evidence and a meaningful opportunity to respond—but “does not confer a general right of predisciplinary discovery” (130 Cal. App.4th 1264, 1276–1280 (2005)). Providing an investigative report or summary explaining the evidence relied upon by the decision‑maker typically satisfies constitutional requirements.
The disclosure obligation may expand if the employer affirmatively incorporates raw materials into the decisional packet. In Davis v. County of Fresno, the court held that where interview transcripts or similar materials are attached to the investigative report and that integrated report is relied upon by the deciding authority, those attachments must be produced at the Skelly stage (22 Cal. App.5th 1122, 1136–1138 (2018)). The converse is equally important: where recordings or transcripts are not attached to the report and are not provided to, or relied upon by, the decision-maker, Skelly does not require their disclosure prior to discipline.
Union Requests and Labor‑Law Disclosure Pressures
Separate from constitutional due‑process obligations, public employers must respond to union requests for information under California’s public‑sector labor laws. Unions are entitled to information that is “necessary and relevant” to their representational role, including the ability to evaluate proposed discipline and determine whether to pursue a grievance. This relevance standard is broad, and failure to respond promptly or to engage in good-faith dialogue can result in unfair practice findings.
At the same time, there is no categorical rule requiring employers to provide verbatim witness statements, recordings or transcripts in every case. Labor law expects employers to articulate legitimate confidentiality or safety concerns and to bargain over reasonable accommodations—such as redactions, summaries in lieu of recordings, protective orders or staged disclosure—rather than reflexively producing or withholding information.
Why Full Files Are Often Produced Anyway
Despite these legal boundaries, many public employers still produce the complete investigative file early in the disciplinary process. This practice is often driven by a mistaken belief that Skelly requires it, concern about unfair practice charges or a desire to avoid conflict by erring on the side of over-disclosure. While understandable, this approach can have unintended consequences, including chilling future witness participation and exposing witnesses to retaliation or workplace ostracism.
Centering Witness Protection in Investigation Design
Witness protection begins at the investigative planning stage. Investigators should document, contemporaneously, any expressed fear, power imbalances, history of retaliation or workplace dynamics that heighten confidentiality concerns. These facts provide the foundation for later disclosure decisions and for articulating case‑specific justifications if accommodations are needed.
Equally important is how the investigative record is structured. Detailed narrative summaries of witness interviews—rather than verbatim transcripts—allow investigators to explain credibility determinations and evidentiary weight without automatically converting raw materials into “materials relied upon” for Skelly purposes under Davis.
Practical and Defensible Disclosure Solutions
When disclosure requests arise, employers are not limited to an all‑or‑nothing response. Timely acknowledgment, clear explanation of concerns and concrete accommodation proposals are critical. Redacted identifiers, counsel‑only review under protective orders, delayed production tied to grievance or arbitration phases or accurate summaries in lieu of recordings can all satisfy labor‑law obligations while reducing risk to witnesses.
Conclusion
Public employers need not choose between due process and witness protection. Properly understood, Skelly, Gilbert and Davis permit a disciplined and intentional approach to disclosure—one that provides meaningful notice and an opportunity to respond without mandating wholesale turnover of investigative files. By structuring investigations thoughtfully and engaging in good‑faith accommodation when disclosure is sought, employers can protect witnesses, comply with the law and preserve the integrity of the investigative process.
Please contact Renne Public Law Group Partner and Head of Investigations Practice Karen Carrera at kcarrera@publiclawgroup.com if you need employment advice and counsel on employment or an unbiased, prompt and thorough investigation. Our lawyers can help. Bilingual and bi-cultural.