Previously (May and June 2005 issues), we re-viewed the preventative phase that addresses the working environment from hire to retirement and the corrective phase, which presented informal approaches to handling unacceptable behavior. This article covers the adverse phase, the trickiest to navigate, especially if the two previous phases have been ignored.


You may take five types of adverse actions against an employee. The term “adverse action” is intended to sound imposing because it is. The actions are progressive in nature, as in the preventative and corrective phases, and there is still hope that the employee will change, but the employee is getting nearer to the end of the rope. These steps set the stage for punitive actions. In a sense, you are starting to take off the gloves. These steps, as noted, still allow the employee the opportunity to correct or eliminate the documented problem in behavior or performance.

I feel compelled to add some of my own philosophy here. Part of adverse action could be dismissal of the employee. This is always contentious in nature and difficult. A few years ago, I was supervisor of an employee who literally dragged me through the progressive discipline process until he was fired. I was lamenting to my old boss about how bad I felt despite the circumstances. My boss told me something that has stayed with me to this day: “Mike, you did not fire this guy; he fired himself.” Keep in mind that this program is intended to change the employee for the better. It is the employee who chooses to disregard the help and forge ahead to his ultimate demise.

The Five Types of Adverse Actions

Official Letter of Reprimand. This is used when action stronger than a corrective interview or Letter of Warning is necessary and when there is no financial penalty. It often helps an employee to realize that the prior warnings, verbal and written, were serious and can be followed by more stringent actions. Before this can happen, however, the employee must understand the differences between the preventative, corrective, and adverse phases of the program. Thus, every employee in your organization-not only the supervisors-should have been given a copy of the “Supervisor’s Guide to Progressive Discipline.” The Official Letter of Reprimand is placed in the employee’s personnel file and, by law, must be removed after three years. This is the last action intended to change an unacceptable behavior and to get the point across without taking something from the employee. Sooner or later, the employee will have to do some “time out”; that is the next step.

Suspension Without Pay. This action bars the employee from working for a specified period of time, without a salary. This action may be taken against employees with permanent, probationary, or part-time status. The length of the suspension depends on the severity of the offense, previous attempts to correct the problem, and prior progressive discipline. This is serious in that you are withholding money from the employee on payday. What this does in many cases is require the person to be accountable to someone important to him in addition to you or your department. Let’s face it: If the employee has taken it to this point, he has indicated that he could not care less about the organization, so you want to see what he does care about. Money is always a safe bet. Perhaps someone is counting on the employee for support, such as his family. The employee may not care about your organization, but he may care about the money and his responsibilities-at least, you hope so. How the employee reacts to this measure will tell you volumes about how effective your efforts are going to be down the road.

Reduction in Salary (within the salary range for the rank). This option is usually used in place of a suspension where an employee’s continued service on the job is of value but the offense is serious enough to warrant adverse action. The reduction might be in increments of five percent. You should stipulate a specific period, but you can set no time limit, if appropriate. This would be considered a permanent reduction in salary and would be adjusted only when the employee qualifies for a salary step adjustment, a cost-of-living adjustment, or a raise. Normally, the length (amount) of the salary reduction is set in relation to the loss of pay that would have resulted if the employee had been suspended. Your instinct may be to get the employee out of your face for a time, but he may be doing a job that requires his presence, and the needs of the community always take precedence over your personal desires. A good way to figure this is to decide the time for which you would like to suspend the employee, determine the amount of pay that would equate to that time, and then set an equivalent reduction.

Demotion. This action is usually taken against an employee in need of some type of discipline whose continued service is of value. Your organization probably spent a large sum of money to train this person, and you owe it to your citizens to try and salvage that investment. As a caveat to that thought, remember that a demotion really shows the employee is just not getting it. A demotion should be used only for a qualified employee who can be expected to perform satisfactorily at the lower classification, and such a lower position must exist. Demotion can be to the maximum salary of the next lower class; however, it is possible to demote to a lower level class at a salary less than the maximum. In the case of a time-specific demotion, the employee should have mandatory reinstatement rights to return to the higher class and salary on a specified date. For a demotion without a specific return date to the higher classification, the employee has some form of permissive reinstatement rights specific to the agency that need to be addressed.

Dismissal. This action is used for exceptionally serious infractions, continued/repeated failures in work performance, or continuing offenses that can no longer be tolerated. Basically, when you choose this option, you are no longer using progressive discipline to change an unacceptable behavior. You have written off the investment and are moving on to better days. Make sure that the employee has had adequate instruction and supervision and was given every opportunity to correct work performance or behavior problems. Except in very unusual circumstances, other forms of adverse action should precede dismissal.

In considering dismissal, the chief should consult with legal counsel to ensure adequate grounds exist to sustain the action. This is as good a place as any to talk philosophy again. This action drops you smack in the middle of the risk management realm, and alarms should go off. Remember, when you are dealing with labor issues, especially concerning the behavior and discipline of personnel, this is not the fireground. You have ample time to plan your next move. Think it over, take time, and talk to your attorney. If you jump into discipline the same way you fight fire, you will lose. I will bet my next paycheck that any time you must dismiss an employee you will deal with various legal assaults on the reasoning used to dismiss. I will also go out on my political limb and say that in most cases someone higher than you will negotiate with a representative of the dismissed employee. In the end, you will see that employee riding some engine in some other battalion. If that should be the case, let it go; it is out of your hands.


When one or more incidents you believe might require formal adverse action against an employee occur, promptly notify your supervisor or the designated person in your organization, who in turn should notify the chief. Submit to your supervisor, for review, a written report that includes a recommendation of the action to be taken. You and your supervisor should then discuss the proposed action with your second-level supervisor, if there is one. After there has been agreement, discuss the report with the chief. The individual expected to serve as the “Skelly officer” should not be part of the discussion or decision to take the adverse action. (See “The Skelly Hearing” on page 88.) The chief most likely would be delegated the authority to take actions up to, but not including, dismissal or involving charges of unlawful discrimination, including harassment. The chief should review the employee’s record to ensure the employee has been informed, both verbally and in writing, relative to how the employee’s work performance has not met standards. In other words, take some time, please.

After discussion with the appropriate staff, and with direction from the chief, the personnel office or designated authority in your outfit should prepare a Notice of Adverse Action. Your organization must have written descriptions of “Grounds for Disciplinary Action”; therefore, the causes listed in the Notice of Adverse Action must be precisely those listed in the Grounds for Disciplinary Action in your Personnel Manual, or wherever they are kept. The notice must clearly state specific allegations and incidents. General conclusions are not sufficient to sustain an adverse action.

Your organization’s legal counsel should review the entire adverse action proposal to determine if it conforms to the government code, organization laws, and rules governing adverse action. It should also be reviewed for organizational uniformity. Your organization must ensure that all adverse action follows due process; take the appropriate amount of time to ensure the process is properly executed. Never start adverse action without legal counsel. This division should coordinate the adverse action with the chief, other appropriate staff members, and other counsel as necessary. Your department’s personnel office will have to retain a copy of the action and the documentation given to the employee.


Once you have decided that there is a need for some type of formal adverse action, there are some things you should consider:

• The seriousness of the employee’s conduct in relation to his job and employment record with the district: first time or a track record?

• The extent to which the employee’s misconduct resulted, or, if repeated, is likely to result in harm to the public service-driving drunk, for example.

• What corrective action would eliminate the cause and prevent a recurrence (the California Supreme Court clearly finds that the organization may punish errant employees as long as that punishment is “just and proper”).

• The circumstances surrounding the misconduct.

• The probable cause of the employee’s behavior.

• What management has done to help prevent this type of behavior.

• The probable impact of the action on the employee.

• The types and severity of discipline administered in similar cases.


When you determine the adverse actions you will take, classify them in the following categories, which will also serve to organize the letter you send to the employee.

Nature of Adverse Action: This section indicates which of five possible actions are being taken and when the action will be effective. A full-time employee should receive written notice of the proposed action at least five working days prior to the effective date of the adverse action. Example: “John Doe, you are being notified that starting Monday, February 5, you will be demoted to galley cook for six months.”

Statement of Causes: This section should contain a listing of the specific causes found under “Grounds for Disciplinary Action” in your organization’s manual. These causes should be broadly construed so that every cause that may be applicable to the acts or omissions for which the employee is being disciplined is represented. Example: “John Doe, you are being demoted to galley cook because you have repeatedly driven fire engines while intoxicated.”

Current Assignment and Relevant Duties and Responsibilities: This section gives a synopsis of the employee’s current and previous assignments relevant to the action being taken. It also describes relevant duties, responsibilities, and training received. This can be supported with duty statements and performance reports. This is where you see how important previous preventative and corrective phase documentation is, including past performance reports. Think about this: How do you formally discipline an employee for continuing misconduct if the employee pulls out five years of excellent performance reports or no reports at all?

Statement of Acts or Omissions: This section contains, in chronological order, the specific acts or omissions for which the adverse action is taken. It is very important that the acts or omissions within this section are described as specifically as possible. Use ordinary language to ensure the appellant is clearly informed of the specific acts or omissions that necessitated the disciplinary action. The statement of facts regarding a particular act or omission should include the following:

Who: the names and classifications of other persons involved in the act or omission;

What: citation of the specific organization regulation, policy, procedure, training, or other standard that was violated. When the act or omission is related to training that the employee had received, include a short description of where and when this training was conducted;

When: the date and, if applicable, time of the act or omission. If unsure of the date, indicate the following: “On or about (date )…”;

Where: the location at which the act or omission occurred;

Why: the details of the act or omission; and

Consequences: the resulting harm or potential liability to the organization, the employees, or the public caused by the act or omission.

The “Statement of Acts or Omissions” section cannot include incidents for which the employee was previously disciplined formally or informally. To determine if “prior discipline” for an act or omission had taken place, consider whether your organization somehow communicated to the employee that the action taken was intended to resolve with finality the matter and that future occurrences would form the basis of adverse action. This would be considered informal “prior discipline.”

Prior Progressive Disciplinary Actions. This section focuses on progressive discipline and is probably not applicable for a first-time offense. In this section, reference other prior disciplinary actions, formal or informal, and any other attempts undertaken to correct the performance or behavior, such as any training provided, counseling sessions, and so on. This section is distinguished from “Statement of Acts or Omissions” in that the actions described in this section are not acts on which the adverse action is based. To help with the entire legal mumble jumble here, I use this rule of thumb: You can’t pull out old discipline stuff if it is not directly linked to the problem at hand and the employee was not told that progressive discipline could continue if the situation was not resolved-in other words, you can’t say, ”Over the past five years, I have had to discuss with you performance problems in various areas, which shows a blatant disregard for following rules in general.” That is why it is important to follow this guide, to recognize when to link behaviors and how.

Materials and Documents. This section includes some form of boilerplate language. It tells the employee whom to call to request supporting documents, including transcribed interviews and a copy of every regulation, policy, procedure, or training the employee is charged with violating. Supporting documents should be clean and readable. Information regarding the Employee Assistance Program (EAP) is included in this section.

Right to Respond to Appointing Power (Skelly). This section also contains boilerplate language. It covers an employee’s right to respond to or appeal the adverse action to the appointing power-the person who will serve as the organization’s contact for receiving oral and written responses (the Skelly officer). Insert this individual’s name and work address in this section. You may also include the phone number.

Right of Appeal. This section covers the employee’s right to appeal the action to the organization’s governing body, such as a District Board of Directors. The employee can exercise this right of appeal regardless of whether a response was made to the appointed power (Skelly officer). Also, consult any collective bargaining agreements.

Separate and Distinct Rights. This section is also boilerplate language. As you have probably recognized, the sections containing boilerplate language can be translated into legal mumble jumble. Therefore, it stands to reason that legal assistance is needed to create these portions of the document.


The employee has the right to respond to charges contained in the adverse action prior to the effective date. Remember, an employee must be notified at least five working days before the effective date of the action, which would help to ensure the employee’s right. The employee is served with written notice of the proposed action and the materials on which the action is based. The employee may respond verbally or in writing to the appointing authority-the Skelly process.


An employee who does not request a Skelly hearing or is dissatisfied with the Skelly hearing response may appeal directly to the governing authority in closed session unless the employee requests the appeal be heard in open session. Collective bargaining contracts often address these issues and should be consulted. When an appeal is filed, a hearing before the board is scheduled. Legal counsel usually represents the organization. Witnesses to the actions and representatives of management generally attend the hearings. Legal counsel handling the case will specify who will have to attend the hearing. Following the hearing, the board prepares a decision.

Often, a settlement between the organization and the employee is reached during the appeals process. The employee or organization may file a request for a rehearing within 30 days of receipt of the board’s decision. The board shall grant or deny the petition within 60 days. The employee, with or without a rehearing, may petition to the Superior Court for a Writ of Mandate so that the court may hear the case. Obviously, your state may have rules that differ from these: Check the laws, and follow those provisions. Concern about a possible appeal should not deter a supervisor from taking adverse action, if warranted. If the facts are documented and the adverse action is properly prepared, an appeal should present no problem. As I alluded to earlier, things may change the course of action out of your control. You have done the best you can, and you should move on.


Once an employee has been served an adverse action, the employee and his designated representative have the right to discovery of information at times and places reasonable to the employee/representative and the appointing power. As stated, all documents relevant to the decision to take adverse action should be attached to the notice when served. In addition, employees who have been served have a right to interview other employees with knowledge of the acts or omissions on which the adverse action is based. The organization should make the employees available; however, the employees can refuse to be interviewed.


Administrative Leave

Occasionally, in cases of workplace violence or pending a dismissal, it is desirable that the employee not be present at the work site prior to and subsequent to the service of notice. An organization may grant 40 hours/56 hours (typically five Monday-Friday working days/one tour) of administrative time off (ATO). The employee receives full pay even though he does not report to work. This time may be extended beyond five days with approval from the chief or other appropriate authority.

Note: If you put an employee on ATO prior to service, you should order the employee to call in each day and be available for work. If the supervisor so requests, the employee may be required to remain at home during normal working hours. This will allow the supervisor to order the employee in to work so that the action can be served. If the employee doesn’t call in, he could be considered AWOL for that day. The employee must be advised of these restrictions in writing.

Ordered Leaves of Absence

An employee may be suspended immediately for reasons listed under Grounds for Disciplinary Action. Pending the appointing power’s investigation of the accusations against an employee involving misappropriation of public funds or property, drug addiction, mistreatment of persons, immorality, or other acts that would constitute a felony or a misdemeanor involving moral turpitude, the appointing power may order the employee on leave of absence not to exceed 15 days. The appointing power may terminate the leave by giving 48 hours notice in writing to the employee. If adverse action is not taken on or before the date such a leave is terminated, the leave should be with pay. If adverse action is taken on or before the date such leave is terminated, the adverse action may be taken retroactive to any date on or after the date the employee went on leave. This process should be coordinated through the chief and the district counsel and be in conformance with state laws.

Amended Adverse Action

The appointing authority or a Skelly hearing prior to the employee’s appeal may amend the adverse action. Notify the employee of the amended action, and file a copy of the amendment with the original action. The letter from the Skelly hearing may be used as an amendment to the action. If substantial changes have occurred, additional time may be needed to prepare for the hearing, or you may need to schedule an additional Skelly hearing.

Stipulated Settlement

If the employee has appealed the adverse action, the action may be amended by stipulation. If the employee has not filed an appeal, the governing authority must receive prior to the expiration of the appeal period any agreements reached with the employee that alter the terms of the adverse action, or the action will become final. The board should prohibit the organization from entering into settlements that (1) exempt the employee from indicating on employment applications that he resigned under unfavorable circumstances and (2) preclude the organization from advising other agencies, who ask, of the circumstances under which the employee resigned.

Resignation/Retirement in Lieu of Adverse Action (Prior to the Effective Date)

When faced with an adverse action, an employee may announce intent to resign/ retire or ask to resign/retire. The adverse action does not become effective if the employee resigns/retires before the effective date of the action. It is the employee’s right to do so under any circumstances; he cannot be prevented from doing so. An exception here would be if the employee fails to meet the “Conditions of Employment.” The resignation/retirement must be entirely voluntary. If a supervisor says, “Unless you resign, you will be dismissed,” or makes a similar statement, the action could be set aside, because it was given by “mistake, fraud, duress, or undue influence.”

If the employee inquires about the effect of resignation/retirement on his status, answer all questions correctly. If you are unsure of a response, refer the employee to the chief. If in certain instances, such as when the disciplinary action is a reduction in pay or a demotion, the employee decides to resign or retire after receiving notice of the adverse action, the lump sum payments for various leave credit might be affected. Under these circumstances, the lump sum payment beginning with the effective date of the adverse action will be made at the lower rate of pay specified in the action, provided that the amount of vacation credits does not exceed the period of the demotion or pay decrease. If it does, then the employee will be paid at the regular rate for the excess time. Be sure to give the employee a letter fully explaining this.


The district may require that a person’s name be removed from any open or promotional employment list. When an adverse action cites unlawful discrimination including sexual harassment, an automatic WITHHOLD should be placed on any organizational promotional list on which the person’s name appears.

Withholding an individual’s name from an employment list is not an adverse action. However, a list “withhold” often will be based on the same set of facts that gave rise to an adverse action. Withholding a candidate’s name from an employment list is not double jeopardy when coupled with an adverse action, and it is not considered punishment. It is simply a result of the candidate’s demonstrating that he is not ready for employment in that job classification.


In addition to terminating the employee from service, a dismissal should remove the person’s name from all eligible lists and make him ineligible to take an examination in another organization without the governing authority’s approval. A dismissal terminates the employee’s salary on the effective date of the adverse action. Except for pay purposes, all accumulated overtime should be credited as of the day of dismissal.

On being dismissed, the employee should be given a lump sum payment for all accumulated leave credit balances up to the date of separation as per organizational policy. As a general rule, when there has been no direct loss to the organization in money or property as a result of the employee’s actions, payment in full should be granted. If the employee owes the employer money, this may be withheld from the employee’s wages paid on separation; however, the organization MUST pay everything the organization reasonably believes and acknowledges is due. When an employee is discharged (terminated from district service other than voluntary), the wages earned must be paid immediately, and payment must be made at the place of discharge. Any organization person, agent, manager, superinten-dent, or officer may be guilty of a misdemeanor if the organization has the ability to pay but willfully refuses to pay wages due and payable after demand has been made or if payment of the amount of wages owed is falsely denied or if there is an intent to annoy, harass, oppress, hinder, delay, or defraud the person to whom such indebtedness is due.


In addition to defined adverse actions, a supervisor should be aware of other actions in the interest of good personnel management. Although not considered adverse actions, the following situation would require similar justification and collection of facts. Some bargaining agreements may address this type of action; be sure to consult the agreements.

Rejection During Probationary Period

Rejection of a probationary employee is the last phase of the selection process and is not an adverse action. However, the same procedures and types of documentation used for adverse actions should be required for rejection of a probationary employee, if only to show you have taken some time and followed some rationale in rejecting the employee. A probationary employee may be rejected for reasons that include a lack of qualifications; the good of the service; a failure to demonstrate merit, efficiency, fitness, or moral responsibility; or the employee is just not working out. During an employee’s probationary period, carefully document all significant aspects of performance. Notify the employee if he is not progressing at the expected rate. Don’t wait until a probationary report is due. Verbally and in writing, call to the employee’s attention any deficiencies as they occur, and offer suggestions for improvement. You have gone to the trouble to hire the employee; take some time to teach him.

• • •

We have covered the three phases of the progressive discipline process. Each one might require a career worth of experience for full understanding. An article series like this can only touch the surface of what you need to know. Recognize that the information presented in this series comes from my organization’s manual (which I used for reference) and may in some cases be specific to California.

The information in this article is the tip of the iceberg and is not intended to become your supervisor’s guide; it is to provide you with a thumbnail sketch of what the world of disciplinary action holds for you. If you would like a copy of the entire document, e-mail me at mterwilliger@sbcglobal.net. Keep one thing in mind: When contemplating any form of disciplinary action, take some time, ask some questions, and get some help.

MICHAEL S. TERWILLIGER is chief of the Truckee (CA) Fire District. He began his career in 1972 with the California Department of Forestry, where he served for 24 years in the following assignments: division chief of operations (South) in the Nevada-Yuba-Placer Ranger Unit and operations section chief and planning section chief on a Type I team from 1988 to 1996. He is a certified fire behavior analyst. Terwilliger was incident commander for the Sierra Front Wildfire Cooperators Team, which operates along the eastern California/Nevada border, and served as its incident commander for six years. He also instructs operations section chiefs, division group supervisors, and strike team leaders.


Following are some of the most commonly asked questions pertaining to the Skelly hearing.

• What is a Skelly hearing?

On September 16, 1975, the California Supreme Court announced its decision in Skelly vs. State Personnel Board. Dr. Skelly, a physician employed by the state, was dismissed and appealed to the court based on the fact that the decision to dismiss him was made by one supervisor, without a higher review, and without opportunity for consideration of his perspective. There is certainly a message in that finding.

Skelly hearings are defined as follows:

At least five working days prior to the effective date of any adverse action against an employee with full-time status, the appointing power or any person authorized by it shall give the employee written notice of the proposed action; the reasons for such action; a copy of the charges and material on which the action is based; and the right to respond, either verbally or in writing, to the authority proposing the action prior to its effective date.

The Skelly response is the employee’s first level of appeal to an adverse action. The employee can request a Skelly in writing or verbally. On this request, an informal meeting called a “Skelly hearing” is held. This meeting is the employee’s opportunity to be heard. No response is expected from the Skelly officer at the time of the meeting; however, a response in writing is necessary. The Skelly hearing is not intended to be a formal hearing with examination of witnesses, and so on. However, someone, such as an attorney or an employee organization, may represent the employee in presenting a response.

• Who is the Skelly officer?

The Skelly officer may be a departmental employee or an outside objective person selected by the chief or the governing authority, such as a board of directors. The Skelly officer selected should reflect the intent of the above listed definition. The person must (1) be reasonably impartial and non-involved (the Skelly officer should not have participated in the discussion or decision to take formal adverse action or be the person who signed the action) and (2) be at least one organizational level above the supervisor who initiated the action, which means he can be from within your organization. The Skelly officer has the authority to effectively recommend and/or sustain, amend, modify, or revoke any or all of the charges. It is entirely proper for the Skelly officer to consult with the investigator, supervisors, the administrative officer, the chief, legal counsel, a labor relations officer, or any other individual before rendering a decision.

• Can the employee request a different Skelly officer?

Management maintains the right to determine the Skelly officer. In some instances, because of the circumstances of a particular situation, it might be in management’s best interest during an intensive appeal/litigation process to have a third party outside of the chain of command serve as the Skelly officer. I would recommend you use someone outside of your organization if possible. Management should determine this before serving the action. Once the Skelly officer is identified, it would establish an ill-advised precedent to change the officer based on employee request. Remember, your organization made the decision to implement some form of adverse action, and this would be the time the employee contests it on some premise.

• Where is the Skelly hearing held?

The meeting should be held in a location that will ensure privacy for the employee. The location of the hearing may be at the employee’s worksite or office. Should the employee involved have to travel, the organization might cover the travel expenses (i.e., mileage, per diem). Make every effort to schedule the hearing during the employee’s normal workday. Your organization should not pay expenses for an employee’s representative.

• Who represents the employee?

The employee may represent himself or choose a representative (a union representative, friend, relative, other legal counsel, for example). Supervisors may select another supervisor or personal adviser or legal counsel. The employee may not use the organization’s legal counsel. The representative may not be disruptive during the Skelly hearing. Usually, the representative is striving to gain the confidence and empathy of the Skelly officer and, therefore, is professional and constructive. However, if the representative is disruptive or uncooperative, the meeting can be recessed.

• Can the Skelly officer have someone take notes in the hearing?

Yes. The goal is to create a supportive setting in which the employee may freely express himself. If a note taker would interfere in this effort, the Skelly officer is encouraged to take his own notes.

• Can the Skelly hearing be recorded?

This is permissible. It is recommended that should the employee or representative show up with a tape recorder, the Skelly officer can choose to (1) not tape the meeting or (2) delay the meeting until the Skelly officer can set up his own taping equipment.

• Can the Skelly officer investigate the case? If so, who is available for consultation?

At any time before, during, or after the hearing, the Skelly officer can question anyone involved in the action, including the supervisor, witnesses to actions, the administrative officer, the chief, and other employees. The Skelly officer can also obtain advice from the organization’s legal counsel.

• Can the Skelly officer entertain a settlement offer?

It is not improper for an employee who has been served with an adverse action to waive his right to an appeal. The district commonly enters into settlements where the adverse action is modified in exchange for the employee’s waiver of appeal rights.

The Skelly officer is in a position to entertain a settlement offer from an employee against whom adverse action has been taken. However, the Skelly officer should never initiate or even suggest settlement negotiations. After consultation with other interested parties, including the employee’s chief, if applicable, the Skelly officer may agree to modify the adverse action in exchange for the employee’s waiver of appeal rights.

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