November 12, 2013
By: Kyle E. Rowen
UPDATE: On February 26, 2014, the California Supreme Court granted the petition for review filed by the Orange County Fire Authority in the case of Poole v. Orange County Fire Authority. (Supreme Court case no. S215300.) Therefore, pursuant to California Rules of Court, Rules 8.1105(e)(1) and 8.1115(a), the opinion of the Court of Appeal discussed below is no longer considered published and cannot be cited or relied upon in any other action. We will follow this case and provide a further update once an opinion is issued by the California Supreme Court.
The Firefighters Procedural Bill of Rights (FFBOR) provides in Government Code section 3255 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 personnel purposes by his employer, without the firefighter having first read and signed the instrument containing the adverse comment indicating he or she is aware of the comment….” Division 3 of California’s Fourth District Court of Appeals issued a decision on November 4, 2013, in the case of Poole v. Orange County Fire Authority that a supervisor’s daily logs of a firefighter, which are then used by the supervisor for personnel purposes and for preparing the firefighter’s annual evaluation, are subject to the provisions of FFBOR.
In Poole, the facts are as follows. Poole worked for the Orange County Fire Authority as a firefighter and was assigned to work at one of OCFA’s stations under the direction of a captain. The captain at this station made handwritten and computerized notes, referred to as daily logs, regarding the performance of each of the employees he supervised. The captain then used these daily logs to assist him in preparing performance evaluations for his employees. These daily logs documented the efficiency of the captain’s employees, including whether the individual firefighter had complied with instructions and had adhered to the agency’s rules. The daily logs, however, were not entered into OCFA’s official personnel file that were kept at its headquarters. Rather, they were merely kept by the fire captain at the assigned station.
Subsequently, based in part upon the captain’s daily logs, Poole received a substandard performance evaluation and he was thereafter placed on a performance improvement plan. At first, Poole did not know the captain’s daily logs existed. Eventually, however, Poole’s union representative learned about the logs and then wrote to OCFA requesting that all of these adverse comments be removed from Poole’s “personnel file” that the captain kept at the station. OCFA refused and contended that while the daily logs were intended for personnel purposes, they were never “entered” into Poole’s official personnel file. Further, OCFA stated that to the extent an adverse comment from the daily logs made it into Poole’s personnel file, it would be included as part of his performance evaluation, and Poole would be provided an opportunity to review and sign, as well as respond to the performance evaluation.
Following a court trial, the trial court found the captain’s daily logs were merely kept to assist him in preparing an employee’s annual evaluation and were not a part of Poole’s personnel file. Thus, the daily logs were not subject to Government Code section 3255’s prohibition under an employer entering adverse comments into a firefighter’s personnel file until such time as the firefighter has read and signed the document containing the adverse comment.
The Court of Appeals reversed the trial court’s decision and found the captain’s daily logs were used for personnel purposes and, therefore, subject to the protective procedures contained in FFBOR.
As stated above, Government Code section 3255 prohibits the employer of any firefighter from entering an adverse comment in his or her personnel file, including any other file used for personnel purposes, without allowing the firefighter to read and sign the document containing the adverse comment. In addition, if an adverse comment is entered into a firefighter’s personnel file, the agency must allow the firefighter 30 days to file a written response. Any written response must then be attached to the adverse comment entered into the firefighter’s personnel file. (Government Code section 3256).
When the legislature enacted FFBOR, it was their intent to mirror the protection afforded to police officers under the Public Safety Officer’s Bill of Rights Act (POBOR). Similar to FFBOR’s provision in section 3255, section 3305 and 3306 of POBOR contain the same rights for public safety officers regarding adverse comments entered into their personnel file or any other file used for personnel purposes, and their ability to file a written response within 30 days.
Prior to this decision, it does not appear that there has been any published case in California dealing with whether a supervisor’s daily logs would be subject to an employee’s rights to review and comment on any adverse statement under FFBOR and POBOR.
In concluding that the supervisor’s daily logs were subject to review and comment provisions in FFBOR, the court noted that the purpose behind granting the firefighter this right would be stifled and contrary to the legislature’s intent in enacting this statutory protection. The general purpose the court found in having the provision within FFBOR was to allow the firefighter the right to review his or her personnel file and to comment on any adverse statements that may potentially affect the firefighter’s employment status. The court found that the information contained in the supervisor’s daily logs was presented to Poole’s superiors within the OCFA and ultimately led to Poole’s sub-standard performance evaluation and placement on a performance improvement plan.
Specifically, the court found that, “FFBOR’s purpose of providing firefighters a right to meaningfully respond to adverse comments that may affect personnel decisions concerning the firefighter [Citation] 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 the adverse comments in that review.” In reaching this conclusion, the court found that a firefighter “could not be expected to remember the details of the same events months and months later when he was finally made aware of the adverse comments in the course of a yearly performance review.”
This case will have far reaching implications for all fire departments and law enforcement agencies in California. A supervisor maintaining daily logs regarding the activity of their subordinates is, in many agencies, a common practice. Indeed, some may argue it is a best practice for supervisors to maintain daily logs because it will allow them to prepare a more thorough and accurate annual performance evaluation. Unless this case is de-published, overturned, or the legislature amends the statutes, supervisors who maintain daily logs should be advised to allow their subordinate peace officers and firefighters to review, sign, and respond to any adverse comments prior to it being entered into any other file used for personnel purposes.
As with all legal issues, it is important that a fire department or law enforcement agency seek out the advice and guidance from their own legal counsel. As always, if you wish to discuss this case in greater detail, please feel free to contact me at 949-975-1000 or vial email at firstname.lastname@example.org.
Kyle Rowen is an attorney at Wesierski & Zurek, LLP and handles matters involving governmental tort liability, police liability, employment law, the Americans with Disabilities Act, municipal law, land use, and premises liability.
The information provided above is for general use and it is not legal advice.