The Fire Fighters Procedural Bill of Rights (FBOR), enacted in 2007, was intended to provide firefighters the same rights as those guaranteed to public safety officers by the Public Safety Officers Bill of Rights (POBR). In many areas, the FBOR contains identical language to that of the POBR. One of these areas is Government Code sections 3255 and 3256 of the FBOR (which mirror that of Government Code sections 3305 and 3306 of the POBR):
Gov’t Code § 3255
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. However, the entry may be made if after reading the instrument the firefighter refuses to sign it. That fact shall be noted on that document, and signed or initialed by the firefighter.
Gov’t Code § 3256
A firefighter shall have 30 days within which to file a written response to any adverse comment entered in his or her personnel file. The written response shall be attached to, and shall accompany, the adverse comment.
On November 4, 2013, the California Court of Appeal, Fourth Appellate District ruled in the case of Poole v. Orange County Fire Authority that adverse comments placed in a fire captain’s informal “daily logs” used to detail positive and negative performance of subordinate firefighters were subject to the requirements of Government Code sections 3255 and 3256 of the FBOR.
Steve Poole is a firefighter with the Orange County Fire Authority (OCFA). From 2008 to 2010, Fire Captain Brett Culp supervised Poole and was responsible for evaluating his performance. To assist in preparing the written evaluations of his subordinates, Captain Culp cultivated a habit of preparing daily logs on each of the firefighters he supervised. The daily logs were maintained by Captain Culp on a flash drive and in folders that were kept in his desk at the fire station. According to Captain Culp, the daily logs included “[a]ny factual occurrence or occurrences that would aid . . . in writing a thorough and fair annual review.” Captain Culp used his informal daily logs to assist him in preparing Poole’s annual performance evaluation for 2009. In that 2009 annual performance evaluation, Poole received a substandard evaluation because his “work habits, personal relations, adaptability, and progress were unsatisfactory.” As a result of the substandard evaluation, Poole was placed on a performance improvement plan. Prior to the imposition of the performance improvement plan, Captain Culp informed his supervisor Battalion Chief Dave Phillips of the daily logs and Poole’s performance deficiencies.
Unsatisfied with his substandard evaluation, Poole sought assistance from his bargaining unit representative, the Orange County Professional Firefighters Association (OCPFA). The OCPFA asked Captain Culp whether he kept notes of Poole’s substandard performance because the evaluation contained specific details of incidents that had occurred during the previous year. Captain Culp eventually provided the OCPFA his daily logs on Poole that included more than 100 entries, many of which described areas in need of improvement. Subsequently, Poole requested that all adverse comments in the daily logs be removed since he did not have an opportunity to respond under Government Code sections 3255 and 3256 of the FBOR prior to their use for personnel purposes in his performance evaluation and subsequent improvement plan. The OCFA refused to remove the comments, contending that even though the notes were for personnel purposes they were never “entered” into any file used for personnel purposes as defined in Government Code section 3255. Rather, the OCFA told Poole that to the extent the daily logs were incorporated into the annual performance evaluation that was placed in his personnel file, he had the opportunity to respond to the comments after reviewing his performance evaluation as provided in sections 3255 and 3256.
Poole and the OCPFA filed a petition and verified complaint in Orange County Superior Court, requesting the OCFA enter adverse comments in Poole’s files only after complying with section 3255 of the FBOR. The trial court denied the petition, likening the daily logs to “post-it” notes that were intended to remind the supervisor of events when he prepared the annual performance evaluation. The trial court also pointed out the parties conceded that if Captain Culp had written Poole’s annual performance evaluation from his memory and not based on written recollections in the daily logs, there would have been no lawsuit. The trial court therefore concluded the daily logs were not part of the personnel file and Poole had no right to respond to the adverse comments. Poole and OCPFA then appealed.
In its review, the appellate court relied on case law interpreting the POBR, since the FBOR is such a new statutory scheme. Following this, the court observed the intent of the POBR was “to protect peace officers from unfair attacks on their character” and that a similar concept necessarily applies to firefighters covered under the FBOR. According to the Court, the most important element is to provide the officer or firefighter the opportunity to respond to allegations of wrongdoing.
The court referenced three POBR cases in reaching its conclusion that the daily logs were part of a file used for personnel purposes. However, none of those POBR cases were on point in addressing a supervisor’s use of notes to assist in preparing an evaluation. As a result, the court relied heavily on the older California Supreme Court case of Miller v. Chico Unified School District (1979) 24 Cal. 3d 703, which interpreted Education Code section 44031 regarding an educator’s right to review and comment on information of a “derogatory nature” before being placed in their personnel file. In Miller, the California Supreme Court held that the protections provided in Education Code section 44031 also applied to personal notes kept by an Assistant Superintendent that were not in the formal personnel file but yet affected an educator’s job status.
The Court paralleled Miller to the facts of Poole’s case and held that its interpretation of Education Code section 44031 should be applied to sections 3255 and 3256 of the FBOR. Following this, the Court noted that Captain Culp’s daily logs were used for making personnel decisions in that they eventually affected Poole’s employment status through his annual performance evaluation and subsequent improvement plan. Poole received a substandard annual performance evaluation based upon the information in the daily logs without having the opportunity to be made aware of and respond to the adverse comments in those daily logs. As a result, the Court reversed the trial court’s decision and concluded that the FBOR was violated because the daily logs were used for personnel purposes. In summary, the Court noted that the FBOR’s right to respond to adverse comments that may affect personnel decisions “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.”
This case will most likely have an effect on law enforcement agencies as well, given the almost identical language in these sections under the POBR (Government Code sections 3305-3306) as in the FBOR sections reviewed by the Court (Government Code sections 3255-3256).
The holding in Poole merely clarifies that under the FBOR, a more informal daily log (or comparable “supervisor’s file”) used for recollection in the preparation of an annual evaluation is considered a “file used for any other personnel purposes.” As a result, any adverse comments placed in an informal daily log or supervisor’s file that will impact a firefighter’s employment status must first be presented to the firefighter to sign or refuse to sign and allow up to 30 days to provide a response as provided under sections 3255 and 3256. The same reasoning should also apply to public safety officers covered by the POBR.
Fire Departments and Law Enforcement Agencies with employees covered under the FBOR and POBR should review their current practices and procedures regarding the use of a supervisor’s file or other informal daily log to track performance in order to ensure that the notice and response requirements related to adverse comments are followed. Supervisors should not make the mistake of holding on to adverse comments to be used at a later date, but rather inform a covered firefighter or public safety officer of performance deficiencies or negative concerns right away when such issues arise and are documented in order to provide them proper notice and a chance to respond as required under the FBOR and POBR.
Poole v. Orange County Fire Authority (2013) Cal.App.4th [2013 WL 5881661]