Since 2008, California firefighters have enjoyed increased procedural protections under the Firefighters Procedural Bill of Rights (FFBOR) (Govt. Code § 3250 et. seq.). Section 3255 of FFBOR provides that “[a] firefighter shall not have any comment adverse to his or her interest entered in his or her personnel file, or any other file used for any personnel purposes by his or her employer, without the firefighter having first read and signed the instrument containing the adverse comment indicating he or she is aware of the comment.…” Recently, the California Court of Appeal for the Fourth Appellate District concluded that a daily log maintained by a fire captain regarding the performance of his employee fell within the ambit of section 3255 where such log was used to aid the fire chief in writing a fair and thorough annual review. (Poole v. Orange County Fire Authority (November 4, 2013, G047850) — Cal.Rptr.3d —-).
A fire captain for the Orange County Fire Authority (“Fire Authority”) had a practice of keeping handwritten and computerized notes regarding the performance of the employees he supervised. These notes were referred to as the captain’s “daily logs.” Included in the logs were notes that the captain felt would assist him and the fire chief in completing annual reviews for the firefighters they supervised, such as whether the firefighters complied with instructions and adhered to rules. The captain kept the logs in two locations – on a flash drive with a separate file for each employee and in hard copy in a manila folder he stored in his desk. The logs were never entered into the firefighters’ official personnel files but the information from the logs was often communicated to the chief for purposes of completing the firefighters’ annual performance evaluations.
In 2010, one of the firefighters under the captain’s supervision received a substandard performance evaluation. Specifically, the evaluation rated the firefighter’s work habits, personal relations, adaptability, and progress as unsatisfactory. Pursuant to the substandard evaluation, the firefighter was placed on a performance improvement plan. After the firefighter complained to his union representative about the substandard evaluation, the representative appeared at the Fire Authority and demanded that it produce its “station file” on the firefighter. The captain handed over his daily logs and the union representative subsequently requested that all of the adverse comments in the daily logs regarding the firefighter be deleted pursuant to FFBOR. The Fire Authority refused claiming that they were not entitled to deletion of the comments because “while the notes were intended to be used for personnel purposes, they were never ‘entered’ into any file.”
The Court of Appeal for the Fourth District of California agreed with the employee and the union representative. It held that “[b]ecause the daily logs were used for personnel purposes and were disclosed to superiors – again for personnel purposes – [the firefighter] was entitled to respond to adverse comments contained therein.”
In reaching its conclusion, the court turned to cases interpreting sections 3305 and 3306 of the Public Safety Officers’ Bill of Rights (POBOR) (Gov. Code § 3300 et. seq.) which mirror sections 3255 and 3256 of the FFBOR. It highlighted the court’s statement in County of Riverside v. Superior Court (2002) 27 Cal.4th 793, 799, that sections 3305 and 3306 were intended to “give[ ] officers a chance to respond to allegations of wrongdoing.” It further noted the Court’s conclusion in McMahon v. City of Los Angeles (2009) 172 Cal.App.4th 1324, 1332-1333 that “the general purpose of the provision granting a firefighter the right to review his or her personnel file and to comment on any adverse comment ‘is to facilitate the [firefighter’s] ability to respond to adverse comments potentially affecting the [firefighter’s] employment status.’”
Turning to the case before it, the court concluded the captain’s daily logs affected the firefighter’s job status because they were used for personnel decisions, such as finalizing a substandard performance evaluation. It noted that the captain’s practice of disclosing the information in the daily logs to the chief without entering them into the personnel file denied the firefighters the chance to respond to any adverse comments, contrary to the intent of FFBOR. It stated: “FFBOR’s purpose of providing firefighters a right to meaningfully respond to adverse comments that may affect personnel decisions concerning the firefighter . . . is frustrated when the firefighter’s supervisor maintains a daily log containing adverse comments that may reach as far back as the day after the firefighter’s last yearly evaluation and the adverse comments are not revealed to the firefighter until the next yearly review, at which point the firefighter may respond to adverse comments in that review.”
For a discussion of the referenced McMahon case, please see our 2009 Legal Alert.
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