Fire-Helmet.jpgRecently, the California Court of Appeal published its first case interpreting the unique provision of the Firefighters Procedural Bill of Rights Act (FBOR) limiting the statute’s procedural employee protections “to the events and circumstance involving the performance of official duties.”  Although the clarification is welcome, it is limited.

In Seibert v. City of San Jose, a civil service commission upheld the termination of a firefighter/paramedic for five charges of misconduct: two related to salacious e-mails sent to a 16-year-old during duty hours, and three related to allegedly harassing conduct toward another firefighter.  The trial court reversed the commission, finding that there was not sufficient evidence to support four of the charges, and that the fifth charge, while it might support some discipline, did not justify termination.

The California Court of Appeal reversed the trial court and remanded the case for further proceedings.

Grant Seibert, a firefighter/paramedic engaged in a salacious email exchange with a 16-year-old girl during duty hours.  The email exchange was the basis of two of the disciplinary charges for which Seibert was terminated.  Seibert was charged with misconduct because he knew or should have known the girl was a minor and because he sent the emails during duty hours, irrespective of the girl’s age.

The Court of Appeal determined that Seibert’s emails, excluding consideration of the girl’s age, could not sustain a charge for a violation of any policy.  First, the court opined that the City’s sources of authority for discipline, including its code of ethics, municipal code, and the fire department’s regulations, were vague, and that the City could not adequately explain how those policies were violated by a firefighter engaging in sexual conversations with (hypothetically) a consenting adult.  The court rejected the City’s argument that Seibert’s on-duty status made the sexual email exchange improper, pointing to the wide range of activities in which firefighters commonly engage during idle time on-duty, including watching movies, online banking, online dating, and personal phone calls and emails.  The appellate court also upheld the trial court’s rejection of the City’s argument that the sexual emails brought discredit to the department because they included sexual double-entendres about Seibert’s duties as a paramedic.

The trial court had also found that the evidence was insufficient to establish that the emails (without considering the girl’s age) violated any City policy, but nonetheless found that charge would support some discipline less severe than termination because of the potential for embarrassment to the City.  The appellate court criticized the trial court’s ruling, stating that it was uncertain whether an “abstract ‘risk of embarrassment’” without a policy violation could be grounds for discipline.  However, the court noted that the parties had not addressed that aspect of the trial court’s decision and left it for the trial court to decide on remand whether Seibert could be disciplined on this charge without even any finding of a policy violation.

The City also charged Seibert with misconduct for exchanging sexual emails with a minor, whom he knew or should have known was a minor, while on-duty.  The civil service commission sustained this charge, but the trial court overturned the commission, finding the evidence that Seibert knew or should have known the girl’s age was less plausible than the contrary evidence.  On this point, the standard of review was crucial.  The Court of Appeal found that there was sufficient evidence to support a finding that Seibert knew, or should have known, the girl was probably underage.  However, in this context, the Court of Appeal only reviews the trial court’s decision to determine if it was supported by “substantial evidence” – which does not mean that the Court of Appeal must agree that the Superior Court was correct.  The Superior Court, however, was not required to give the same level of deference to the commission – the Superior Court applies its “independent judgment” and although it is required to give a “strong presumption of correctness” to the commission’s decision, it is not bound by the factual determinations made by the commission if it believes they are inaccurate.

The City also charged Seibert with unwelcome touching of, and inappropriate communications to, a colleague at the training center to which he was assigned during the investigation of the salacious emails.  Seibert’s colleague testified that she did not support the discipline and claimed not to remember the facts she had described to the City’s investigator.  The trial court found the colleague’s investigative interview statements to have not been properly authenticated by testimony and to be inadmissible hearsay, and therefore refused to consider the City’s evidence of Seibert’s misconduct.  The Court of Appeal reversed these rulings, noting that Seibert had not objected on this authentication grounds before the commission, and that the transcripts were within exceptions to the hearsay rule for prior inconsistent statements and recorded past recollections.  Therefore, the appellate court ordered the trial court to consider the transcripts on remand.

The FBOR provides certain procedural protections to firefighters with respect to disciplinary actions.  However, unlike the Peace Officers’ Procedural Bill of Rights Act (“POBR”), the FBOR protections only “apply to a firefighter during events and circumstances involving the performance of his or her official duties.”  Also, unlike the POBR, one of these protections is that the appeal must be heard by an administrative law judge or, if the agency and the union have agreed in a memorandum of understanding, a neutral arbitrator as part of binding arbitration.

The Court found that alleged unwelcome touching of a fellow firefighter while at a training center is within the scope of the FBOR.  However, the Court of Appeal found it “debatable” whether (1) sending allegedly harassing voice and text messages to the same colleague while off the premises and (2) sending salacious email messages to a minor while on-duty were covered by the FBOR.

In deciding whether the FBOR applied to Seibert’s discipline, the appellate court determined that when an employee is terminated based on charges that are joined together (such as in a single notice of termination), where some charges are governed by the FBOR and some are not, the appeal must proceed in accordance with the FBOR as to all charges rather than limiting the appeal to charges that “involve[e] the performance of official duties.”

The key lesson from the Seibert decision is that the mere fact that a firefighter was on-duty and in the fire station when the alleged misconduct occurred is not necessarily enough to entitle him or her to FBOR protections.  Agencies are reminded to consult with legal counsel to determine whether the Act applies in a particular set of circumstances.  Further, this decision is a reminder to have clear policies and, in imposing discipline, to articulate how those policies were broken.


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Photo of Paul D. Knothe Paul D. Knothe

Paul Knothe practices in Liebert Cassidy Whitmore’s Los Angeles office where he advises and represents public agency and community college clients in employment law, with an emphasis on public safety issues.

Paul advises public safety agencies on complex and cutting-edge issues arising from…

Paul Knothe practices in Liebert Cassidy Whitmore’s Los Angeles office where he advises and represents public agency and community college clients in employment law, with an emphasis on public safety issues.

Paul advises public safety agencies on complex and cutting-edge issues arising from police reform legislation, including the transparency laws reducing traditional Pitchess protections and exposing peace officer personnel records to disclosure in response to Public Records Act requests.  He is a dynamic public speaker and provides training to law enforcement leaders on these reforms.  Paul is also well versed in the Public Safety Officers Procedural Bill of Rights Act (“POBRA”) and handles sensitive disciplinary issues and high-profile civil litigation and disciplinary appeal cases regarding claims of uses of force, off-duty misconduct, and discrimination, harassment, and retaliation.  Paul serves as a member of LCW’s Public Safety Practice Group Executive Committee.

A seasoned litigator, Paul defends clients in state and federal courts at both the trial and appellate levels. He has successfully defended agencies in collective action, multi-plaintiff, and single-plaintiff employment matters.  Paul litigates a full range of employment law matters including alleged discrimination, harassment, retaliation, POBRA, and wage and hour issues.   He manages all aspects of litigation, from case assessment and pre-trial motion practice, through all forms of discovery proceedings, and settlement, to trial.

Additionally, Paul conducts thorough workplace investigations, with a focus on high-profile incidents or allegations against senior management personnel.