In a long anticipated decision, the California Supreme Court has held that a supervisor’s daily log, or file, was not a “file used for any personnel purposes” under the Firefighters Procedural Bill of Rights.  In 2013, the Court of Appeal ruled that a fire captain’s daily log documenting firefighter performance should have been disclosed to the firefighter prior to the captain using the information to prepare a performance evaluation.  The California Supreme Court disagreed and held that “because the log was not shared with or available to anyone other than the supervisor who wrote the log, it does not constitute a ‘file used for any personnel purposes by his or her employer’ and [Government Code] section 3255 does not apply.”

Introduction

The Firefighters Procedural Bill of Rights (FBOR), enacted in 2007, was intended to provide firefighters similar 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):

Government Code Section 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.

Government Code Section 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.

Fact Summary

Steve Poole is a firefighter with the Orange County Fire Authority (OCFA).  From 2008 to 2010, Poole was supervised by Fire Captain Brett Culp, who was responsible for evaluating Poole’s performance.  To assist in preparing the written evaluations of his subordinates, Captain Culp prepared daily logs on 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.

Prior to preparing Poole’s performance evaluation, Captain Culp addressed certain performance and behavior issues with Poole.  The daily log reflected descriptions of Poole’s activities and Captain Culp’s discussions with him.  Not all the incidents mentioned in Captain Culp’s daily log were included in Poole’s performance evaluation.  On occasion, Captain Culp also discussed Poole’s performance with Culp’s supervisors, human resources personnel, and attorneys for the OCFA.  However, he never provided copies of his daily log to these individuals and never allowed other employees to review it.

After Poole received a substandard performance evaluation, he had an opportunity to review and respond before it was entered into his personnel file.  After the evaluation was entered into his file, Poole requested a copy, which he shared with his union representative Bob James.  James was suspicious of the level of detail in the evaluation and thought Captain Culp must have maintained a separate “station file” on Poole.  Poole asked for that file, which was provided to him.  Poole complained to the OCFA that he did not have an opportunity to respond to the notations in the daily log in violation of the FBOR.  He asked for all negative comments based upon the logs to be removed from his file.  The OCFA denied his request.

Poole filed a petition and complaint, requesting the OCFA to 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 concluded the daily logs were not part of the personnel file and Poole had no right to respond to the adverse comments contained in the daily log.  Poole appealed.  The Court of Appeal held that the daily log was a personnel record for purposes of the FBOR.  The OCFA appealed that decision to the California Supreme Court.

Court’s Ruling

On August 24, 2015, the California Supreme Court determined that adverse comments placed in a fire captain’s informal “daily log” used to detail positive and negative performance of subordinate firefighters was not subject to Government Code sections 3255 and 3256 of the FBOR.

The California Supreme Court noted that the FBOR does not define the phrase “used for any personnel purposes” as set forth in Government Code section 3255.  Therefore, the Supreme Court considered the plain language of the statute and concluded that section 3255 must be reviewed along with two other sections of the FBOR to determine its intent.

Section 3255 provides that the firefighter has the right to review and respond to adverse comments entered into the personnel file.  Section 3256 allows a firefighter to respond in writing to any adverse comment that is entered into the personnel file, which is then attached to the adverse comment.  Section 3256.5 allows the firefighter to inspect “personnel files that are used or have been used to determine that firefighter’s qualifications for employment, promotion, additional compensation, or termination or other disciplinary action.”  The firefighter further has a right to request that incorrect information be removed from the file. (Gov. Code, section 3256.5, subds. (c), (d).)

The Supreme Court, therefore, determined the Legislature was concerned not with “any and all” files but with those that related to the firefighter’s “qualifications for employment, promotion, additional compensation, or termination or other disciplinary action.”  As such, a “supervisor’s log that is used solely to help its creator remember past events does not fall within the scope of that definition.”  The Supreme Court further noted that this interpretation would be the same under the Public Safety Officers Procedural Bill of Rights.

The Supreme Court also emphasized that Captain Culp was not Poole’s employer and he had no authority to take any adverse disciplinary action, such as demotion or discharge, against Poole on behalf of the OCFA.  Rather, Culp’s comments could only adversely affect plaintiff if and when the comments were placed in a personnel file, or in some other form, and those who had the authority to discipline Poole had access.  The Supreme Court found no evidence that this occurred in the Poole case, thus, Culp’s supervisor’s file was not subject to the requirements of section 3255.

The Supreme Court also found that the Court of Appeal’s application of Miller v. Chico Unified School District (1979) 24 Cal. 3d 703, which interprets Education Code section 44031 regarding an educator’s right to review and comment on information of a “derogatory nature” before being placed in a personnel file, was misplaced.  The Supreme Court distinguished Miller because the supervisor in that case used her notes to prepare memos that were sent directly to the Board of Education so that it could make a determination regarding Miller’s employment.  Here, the Supreme Court noted that although Captain Culp discussed Poole’s performance with his Battalion Chief, he did not share the actual logs.  The Supreme Court found that the FBOR does not “regulate a supervisor’s preliminary verbal consultations with his superiors or human resources personnel prior to completing an evaluation.”

Practice Pointer

While this case holds a supervisor’s logs are not a “personnel file” under section 3255, it is important to note the limitations of the decision.  The Supreme Court remarked several times that because the logs were not available or shown to anyone else, they did not constitute a “personnel file.”  Moreover, the Supreme Court noted that the fire captain did not have any independent authority to take an adverse action against Poole employee.  A change in these facts may have resulted in a different holding.

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 Supreme Court (Government Code sections 3255-3256).

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 to ensure that supervisors understand that the manner in which the supervisor maintains his or her supervisor’s file may determine whether the subject officer or firefighter has a right to review comments prior to submission in the file.  While a supervisor can apparently discuss the contents of a supervisor’s file with superior officers or human resources personnel without bringing the file within the purview of the FBOR or POBR, sharing the contents of the file with superiors or other employees may have a different outcome.  Thus, agencies may contemplate protocols to prevent inadvertent disclosure or sharing of supervisor’s files.

In addition, if the notes are utilized by individuals who have the authority to make decisions regarding “qualifications for employment, promotion, additional compensation, or termination or other disciplinary action,” the outcome may also be different.  For example, if the supervisor maintaining the file does have the discretion and authority to impose discipline, would the supervisor’s file fall within the parameters of section 3255 (FBOR) or 3305 (POBR)?  While the Poole decision is a good one for public agencies, it does leave open several questions.

Poole v. Orange County Fire Authority (Aug. 24, 2015, S215300)

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