In 2007, the Firefighters Procedural Bill of Rights Act (FBOR) was enacted after several years of unsuccessful attempts to pass similar legislation. Although the FBOR is modeled after the longstanding Public Safety Officers Procedural Bill of Rights Act (POBR) [Gov. Code, §§ 3300 et seq.], that statutory scheme, which was originally intended for peace officers, presents numerous challenges to the fire service.
As described by several members of the fire service, the culture is quite different from the culture of law enforcement. The observations of fire chiefs and captains show that the POBR’s procedures and protections are not necessarily a good fit. An important difference between firefighters and peace officers is that firefighters work twenty-four-hour shifts; additionally, at least 10 days a month while on these 24-hour shifts, firefighters not only work together but also grocery shop, eat, share significant downtime, and live together. Police officers do not live with each other while on shift, and they spend a substantial amount of time engaging in solitary law enforcement activities.
The dynamic created by the firefighters’ living situation is quite different than in law enforcement. Prior to the FBOR, fire captains could have frank discussions with subordinates without the constraints of the FBOR’s procedures. Although the living situations have not changed from before and after the FBOR, many fire service members believe the rigidity and formalities of the FBOR have altered their culture, causing some fire captains to be reluctant to correct or discipline subordinates.
History of the FBOR
The FBOR’s history and the incongruent comparisons of firefighters to peace officers illustrate the effect the FBOR has had on the fire service culture.
In 1999, Assembly Bill 1411 was introduced as the Firefighters Procedural Bill of Rights Act. In an effort to emulate and afford the same rights as the POBR, the bill substituted the term “firefighter” for “peace officer” and was otherwise word-for-word identical to the POBR. AB 1411 ultimately failed to pass the Senate Appropriations Committee. In the 2007 version, not much changed in the statutory language. However, merely inserting “firefighter” in place of “peace officer” is demonstrative of the adage . . . apples and oranges.
According to Assembly Member John Longville, he introduced AB 1411 to “permit firefighters to engage in political activity in the same manner [as public safety officers] and . . . [to] require the same procedures and conditions for the investigation and interrogation of a firefighter that could lead to punitive action.” It was also intended “to assure that stable relations are continued throughout the state and to further assure that effective services are provided to all people of the state.”
In August 1975, AB 301 (POBR) was signed by the governor of California. In the July 1975 California Organization of Police and Sheriffs (COPS) Journal, POBR was described as necessary to protect the rights of police officers who were “accused of minor infractions, suddenly find[ing] themselves transferred to graveyard shifts or to the furthest reaches of the jurisdiction. Others are given the most tedious or undesirable assignments for long periods of time. There are the ‘serving your punishment’ assignments . . . .” Another example of police officer rights allegedly being abused was the “indiscriminate use of the polygraph against police officers.”
Firefighters work 24-hour shifts—police officers do not. It is not possible to punish a firefighter by assigning him a graveyard shift. When the FBOR bills were introduced, there were no allegations of polygraph abuse or unreasonable punishment in the fire service. What exactly the firefighters wanted in 1999 that they were not already entitled to under constitutional due process remains unclear. Assembly Bill 1411 eventually died in the Senate.
In 2006, another legislative effort failed. AB 2857, which ultimately died in the Assembly, was introduced to extend the POBR coverage to firefighters and to overturn the appellate court decision Gauthier v. City of Red Bluff (1995) 34 Cal.App.4th 1441, which held that arson investigators were the only fire personnel who were covered by the POBR.
Finally, with AB 220, the FBOR was enacted. When AB 220 was introduced, the intent was for the FBOR “to mirror most, if not all, of the provisions in POBOR [an alternative acronym for POBR] and make them applicable to firefighters, including those who are paramedics or emergency medical technicians.”
Comparing the Incomparable
Assembly Bill 220’s proponent, the California Professional Firefighters (CPF), compared firefighters to public safety officers: “Firefighters often find themselves in situations where their sworn duty commands appropriate steps to ensure the safety of the public. The reality is that on the street, there are situations where the role of a firefighter intersects with that of a peace officer.” Staff evaluating the bill, however, expressed skepticism with this comparison, noting that no published cases were found involving a firefighter who alleged his due process rights were violated “by an interrogation or investigation for misconduct while executing his job duties.” When considering the history of the POBR and the FBOR and the reasons cited in support of and in opposition to the statutes, the differences are clear.
In each of the attempts to pass the FBOR, the proponents claimed that firefighters “could be” subject to investigations and interrogations that lead to disciplinary action. Opponents argued that firefighters simply were not the subject of investigations and interrogations to the same degree as peace officers.
One of the comments from opponents of the bill was that the POBR created a “hefty” body of case law resulting from the statutes. Indeed, during the first ten years of the POBR, California appellate courts heard 30 cases involving the POBR. The same cannot be said for the FBOR. In the first 10 years of the FBOR, only two reported cases have analyzed or interpreted the FBOR (Poole v. Orange County Fire Authority and Seibert v. City of San Jose), and a third case in 2016 (Clark v. California Dept. of Forestry and Fire Protection), which was decided by a federal district court, did not serve to interpret member rights and instead only considered a point related to litigation of disputes (it found that the FBOR bars individual liability for firefighters who violate the FBOR due process requirements).
After 10 years of the FBOR, fire chiefs, deputy chiefs, battalion chiefs, and captains have cited to the FBOR’s procedures as confusing and irrelevant to the fire service. In support of the FBOR, the Legislature declared that “[f]irefighters who trust their instincts in these volatile emergency situations are deserving of due process rights and protections should those circumstances arise.” However, firefighters already had due process rights and protections, as well as substantial protections through collective bargaining. Perhaps after another 10 years, the effect of the FBOR on the culture will have diminished because by then many of the firefighters will have known only an FBOR-governed fire service.