California Supreme Court Finds Limited Exception to Employees' Access to Supervisor Notes Under FFBOR

On August 24, 2015, the California Supreme Court issued a decision in Poole v. Orange County Fire Authority. The Court held Government Code section 3255 did not compel the County to provide a firefighter the opportunity to review and respond to a supervisor's personal notes regarding the firefighters work performance if the notes were not used for a personnel purpose. The supervisor did not share the notes or make them available to anyone with authority to take adverse disciplinary action against the firefighter. For these reasons, the Court held the supervisor's notes did not constitute a file "used for any personnel purposes by his or her employer."

Under the Firefighters Procedural Bill of Rights Act ("FFBOR"), a firefighter has the right to review and respond to any negative comment that is "entered in his or her personnel file, or any other file used for any personnel purpose." In Poole, a supervisor maintained raw notes on his subordinates. The notes documented factual occurrences for his reference when writing employees' annual reviews. Some of the occurrences in the supervisor's notes described instances where the employees had failed to complete assigned duties. The supervisor did not make these notes available to anyone with authority to take adverse action against the firefighter and not all of the notes were documented in annual performance reviews. The Court considered the narrow question of whether the FFBOR required the supervisor to provide employees the opportunity to review and respond to negative comments in his notes that were not included in the employees' annual performance evaluations or performance improvement plans.

It is well established that employers must provide firefighters and public safety officers an opportunity to review and respond to negative comments entered into files used for personnel purposes. For example, in Venegas the appellate court concluded that an index card maintained by internal affairs documenting all complaints against an officer constituted a file "used for... personnel purposes," because it would be available to those responsible for disciplinary action. In addition, in County of Riverside, the county was required to disclose to a police officer adverse comments in a file containing the results of a background investigation the county used to determine whether to continue to employ the officer. And in Aguilar, the appellate court held an officer was entitled to review and respond to an uninvestigated citizen's complaint placed in a confidential investigative file. These cases remain authoritative in compelling employers to provide firefighters and public safety officers the opportunity to review and respond to adverse comments placed in files "used for... personnel purposes."

The Court distinguished this case from other cases interpreting similar statutes on the basis that the supervisor's notes were not available to anyone making personnel decisions in the future. Based on a unique set of circumstances, this case clarified FFBOR protections are not triggered by a supervisor's private notes that were not used for any personnel action.

Supreme Court to Resolve What Counts As a Personnel File

Government Code section 3255 requires employers give firefighters an opportunity to review any adverse comments before they can be placed in the firefighters "personnel file, or any other file used for any personnel purposes by his or her employer."  Likewise, Government Code section 3256.5 give firefighters the right to inspect their files and request corrections.  But, some employers have tried to skirt around the law by making adverse comments in secret files or other places.  Now the California Supreme Court will weigh in on what constitutes a personnel file under FFOBR when it hears the appeal of Poole v. Orange County Fire Authority.

In Poole v. Orange County Fire Authority, the Court of Appeal ruled firefighters have a right under FFBOR to review and respond to personnel comments entered into "daily logs," even though the employer claimed they were not put in the employee's "personnel file."

The case is about a firefighter with the Orange County Fire Authority (OCFA). OFCA keeps personnel files at OFCA's headquarters in Irvine, but a fire captain kept a separate file at the fire station on each of the firefighters he supervised, which he called "daily logs." He used in the preparation of yearly evaluations and did not give firefighters an opportunity to review them before recording them.

When the firefighter found out about the "daily logs," he requested management delete them pursuant to section 3256.5(c).  However, OFCA refused, claiming they were not subject to FFBOR because “while the notes were intended to be used for personnel purposes, they were never ‘entered’ into any file.” The Court of Appeal disagreed, noting firefighters should be able to review the daily logs because the purpose of the law is to “facilitate the firefighter’s ability to respond to adverse comments potentially affecting the firefighters employment status.”

The California Supreme Court granted review on February 26, 2014.

POBR, FFBOR Amendments Clarify Witness Right to Representative

On January 17, 2014, the state senate amended Senate Bill 388.  the law would amend the Public Safety Officers Procedural Bill of Rights Act (POBR) and Fire Firefighters Procedural Bill of Rights Act (FFBOR).  Both laws give legal rights to officers and firefighters under investigation or witnesses in an investigation.  According to the Senate Committee Analysis, "SB 388 would specify that a firefighter or peace officer witness may have a representative present when questioned by his or her employer regarding the investigation of another firefighter or peace officer, if that interview may lead to disciplinary action against the witness, as specified."  Senator Ted Lieu introduced the bill.

Court Rules POBR Statute of Limitations Tolled Until DA Declines Charges

In Richardson v. City and County of San Francisco (ord. pub. March 15, 2013), the Court of Appeal held a criminal investigation tolls the one year statute of limitations until the DA declines charges.  The case is about a San Francisco fraud investigator who was fired for CLETS violations, check fraud, and resisting arrest.  After the IAs were sustained, she filed a lawsuit claiming her Department did not discipline her within the one-year statute of limitations for discipline under POBR.

POBR’s one year statute of limitations has several exceptions.  One of the exceptions applies when, a “criminal investigation... is pending.”  Richardson argued POBR’s statute of limitations expired because the criminal investigation had to be an “actual and active investigation or prosecution” and the DA had stopped actively investigating the case against her more than a year before she was fired.  However, the Court decided the “active and actual” requirement is unworkable because it would be hard to prove how “active” a criminal investigation is at any point.  Instead, the Court said the investigation ended when the DA declined charges.  As a result, the Court upheld the discipline.

Mastagni Law App Puts POBR and FFBOR on Your Mobile Device

Mastagni Law is rolling out the new Mastagni Law App.  The free app is available for Apple and Android devices.  The Mastagni Law App provides first responders and private citizens with helpful resources and emergency tools to assist with on-the-job injuries and life-changing events.  The app features easy-to-use resources on the Peace Officers' Bill of Rights and Firefighters' Bill of Rights.  Other features include:

• Accident Log to record pertinent information at the scene of a vehicle accident
• Ability to capture photos of accident scene and vehicle damage
• Medical Log in the event you are injured, an automated calendar will keep track of your doctor appointments, dates and allows for notes on medical recommendations
• 24-Hour access to call our attorneys to report a Critical Incident
• Exposure Report to submit to our attorneys in the event you have been exposed to a potentially hazardous element
• Helpful resources on Contract Negotiation

City Charter Bars Discipline For Accused Firefighters

Recently, Los Angeles City firefighters have been under investigation for allegedly permitting filmmakers to use an engine as the backdrop for a short film.  However, the alleged violations occurred more than two years ago.  In Los Angeles, that means the firefighters cannot be subjected to discipline because of important protections in the City Charter.  The Los Angeles City Charter provides that "charges must be filed within one year of the department’s discovery of the act committed or omitted by a member and in no event later than two years from the date of the act or omission."  (Los Angeles City Charter, art. X, section 1060(a) (emphasis added).)

The Firefighters Procedural Bill of Rights Act, like POBR, has a one-year limitation period with several exceptions.  Most prominently, the one-year period does not begin until a Department discovers the alleged misconduct.  The two-year limit in Los Angeles, however, does not contain these exceptions.  As a result, firefighters there cannot suffer discipline for alleged misconduct that was not serious enough to raise attention at the time and they do not have to reconstruct long-forgotten details and evidence in order to defend themselves.

Court Holds FFBOR Applies to Charter Cities

In International Association of Firefighters, Local 230 v. City of San Jose (May 24, 2011), the Court of Appeal ruled the Firefighters Procedural Bill of Rights Act (FFBOR) applies to charter cities, even if it conflicts with a city’s charter.

After FFBOR was enacted in 2008, Local 230 requested the City meet and confer over how it would be implemented. However, the City refused, claiming it was exempt from FFBOR because it is a charter city. The City claimed the “home rule” provisions of the California Constitution meant the city charter trumped conflicting state laws, including FFBOR.

The California Constitution gives charter cities special powers to “make and enforce all ordinances and regulations in respect to municipal affairs, subject only to restrictions and limitations provided in their several charters…” (Cal. Const. art. XI, § 5.) Charter cities have claimed this provision means they do not have to follow the Public Safety Officers Procedural Bill of Rights Act (POBR). Courts, however, have rejected these claims. The Court of Appeal looked to those cases to decide whether charter cities have to comply with FFBOR.

In Baggett v. Gates (1982) 32 Cal.3d 128, the California Supreme Court decided the “home rule” provision of the state Constitution applies to issues that are “strictly municipal affairs,” but not “matters of statewide concern.” The Court of Appeal used the same analysis in Baggett and applied it to FFBOR. The Court noted stable labor relations with public employers, including firefighters, are a matter of statewide concern. It also gave “great weight” to the Legislature’s finding FFBOR addresses a matter of statewide concern.