FIREFIGHTER ENTITLED TO SEE NOTES, KEPT BY SUPERVISOR, REGARDING FIREFIGHTER’S ACTIVITY
On November 4, 2013, the California Court of Appeal held, in the case of Poole et al. v. Orange County Fire Authority, that daily activity logs, which included notes about “whether firefighters complied with instructions and adhered to rules,” and which “were intended to be used for personnel purposes,” are subject to the provisions of the Firefighters Bill of Rights Act (FFBOR), Government Code sections 3250 – 3262.
Facts
The court found that “Steve Poole is a firefighter with the Orange County Fire Authority (OCFA) and a member of the Orange County Professional Firefighters Association, an employee organization for firefighters, fire apparatus engineers, and fire captains. Although OCFA’s official personnel files are kept in Irvine, at OCFA’s headquarters, Poole’s fire captain kept a separate file at the fire station on each of the firefighters he supervised. The captain maintained in those files what he characterized as daily logs, documenting the activities of the firefighters. The files were kept solely for a personnel purpose; for the captain’s use in preparing yearly evaluations (or evaluations required by a performance improvement plan).”
“The daily logs themselves were not seen by Poole until a representative from his employee organization demanded them. When Poole requested all adverse comments be deleted from the daily logs pursuant to section 3256.5, subdivision (c), OCFA refused, claiming the daily logs were not subject to FFBOR, in part because ‘while the notes were intended to be used for personnel purposes, they were never entered into any file.’” (Emphasis in original.)
However, “(s)ince becoming a fire captain, Brett Culp has made handwritten and computerized notes, referred to by the parties throughout these proceedings as daily logs, on the performance of each of the employees he supervised. Culp included in his daily logs ‘[a]ny factual occurrence or occurrences that would aid . . . in writing a thorough and fair annual review.’ The logs document the efficiency of the firefighters under Culp’s supervision, including whether firefighters complied with instructions and adhered to rules. Culp kept the electronic entries on a flash drive containing a separate file on each employee he supervised. He also maintained a hard copy in a manila folder he kept in his desk with the employee’s name on it.”
Culp informed his superior, Battalion Chief Dave Phillips, of the file he kept on Poole. After Culp gave Poole a substandard evaluation, Poole went to his Orange County Professional Firefighters’ Association (OCPFA) representative, Bob James, to discuss it. James asked Poole if Culp kept a file on him and Poole said he knew of none. James then demanded of Culp that he be given Poole’s “station file” and Culp gave him the daily logs which contained more than 100 entries, many of which were adverse comments.
“Poole wrote a letter to OCFA requesting the removal of all adverse comments in his ‘personnel file’ located at the station house. Fifteen days later, OCFA responded, stating that ‘while the notes were intended for personnel purposes, they were never ‘entered’ into any file as required by section 3255.”
In addition, the OCFA said Poole had the opportunity “to respond to any adverse comments in the evaluation prior to the evaluation [being] placed in his personnel file.”
Poole and the OCPFA filed a writ petition mandating that OCFA comply with Government Code 3255. “(T)he court entered an order denying relief. The court concluded the daily logs Culp kept in order to aid him in preparing employee evaluations were not part of Poole’s personnel file and are not subject to section 3255’s requirement that adverse comments not be entered into a personnel file until such time as the firefighter has read and signed the instrument containing the adverse comments. The court analogized Culp’s notes to Post-it notes he used to remind himself of something.” Poole and the OCPFA appealed.
FFBOR and POBOR
The Court of Appeal stated that “(b)ecause FFBOR is of recent origin, it has not been the subject of published appellate court decisions on the issue presented. As FFBOR mirrors POBOR, we look to prior decisions dealing with comparable provisions of POBOR. [Gov Code] sections 3305 and 3306 of POBOR were intended to protect peace officers from unfair attacks on their character. Like sections 3255 and 3256 of FFBOR, sections 3305 and 3306 ‘give[] officers a chance to respond to allegations of wrongdoing.’”
The court also noted that similar statutory protections were afforded teachers in the Education Code.
The court also noted that while citizen complaints against police officers “may be kept in an officer’s general personnel file, they are often kept in a file separate and apart from the general personnel file of the officer. The courts have found POBOR applies to citizen complaints, even when the complaint is not kept in the officer’s [general] personnel file, because the ‘very purpose’ of the investigation requirement of Penal Code section 832.5 is ‘to assess the [officer’s] qualifications for continued employment.’ Culp’s daily logs appear to have the same design, given they are kept for evaluation purposes.”
The court also stated that “(r)ecognizing the existence of a citizen’s complaint in an officer’s personnel file may very well adversely affect the officer’s employment, the Legislature requires law enforcement agencies to remove from an officer’s [general] personnel file any complaint found to be frivolous or unfounded. Still, those complaints must be maintained in a separate file the Legislature also deems to be ‘personnel records’. . . . “
“Just as the right to inspect personnel files found in POBOR (§ 3306.5) is intended to effectuate the right of law enforcement officers to read and sign an instrument containing an adverse comment prior to placement in his or her personnel file or other file used for personnel purposes by the employer, section 3256.5 is intended to give firefighters the same rights. Therefore, the general purpose of the provision granting a firefighter the right to review his or her personnel file and to comment on any adverse comment ‘is to facilitate the [firefighter’s] ability to respond to adverse comments potentially affecting the [firefighter’s] employment status.”
The court referenced a school decision, Miller v. Chico Unified School District (1979) 24 Cal.3d 703, which“involved a school principal who was removed from his administrative position and placed back in a classroom. Similar to POBOR, Education Code section 44031, originally enacted in 1976, gives teachers the right to inspect their personnel files and further provides information of a ‘derogatory nature’ may not be included in an educator’s personnel file until such time as he or she is given notice and an opportunity to comment on the information.”
“The Supreme Court . . . found the school district violated Education Code section 44031 by failing to enter . . . confidential [negative] memoranda into Miller’s personnel file, thereby denying him the opportunity to comment on the contents of the memoranda. The memoranda were prepared by the associate superintendent ‘from his personal notes and calendar, a summary of various meetings, contacts, occurrences, and events’ involving Miller.’”
The school district argued that the notes “had not been entered into Miller’s personnel file.” However, the Supreme Court held that, “By using the memoranda to affect Miller’s employment status without providing him an opportunity to correct inaccurate information contained in the memoranda, the school board violated Education Code section 44031.”
The Poole court stated that by “(a)pplying Miller to the present facts, it is evident the daily logs affected Poole’s job status. The daily logs kept in Poole’s file at the fire station were used for personnel decisions. His substandard performance evaluation was admittedly based on adverse comments contained in the daily logs.”
Furthermore, “(a)s in Miller, revealing the contents of the daily logs to Battalion Chief Phillips denied Poole the opportunity to respond to the adverse comments made known to the employer, contrary to the intent of the protective statutory enactment.”
HOW THIS AFFECTS YOUR AGENCY
Although this decision involves firefighters and interpretation of FFBOR, it can also be applied to peace officers and the interpretation of POBOR. As the court stated, “(b)ecause the daily logs on Poole’s activities at work and kept in a file with his name on it were used for personnel purposes and were disclosed to superiors—again for personnel purposes—Poole was entitled to respond to adverse comments contained therein.”
It has been held in previous cases, that a file used for personnel purposes need not be the “official” personnel file. As such, any adverse comments regarding an officer’s job performance, whether operational performance or compliance with policies, procedures, rules or regulations, which are to be used for some personnel purpose, must be brought to the attention of the employee.
It is recognized that supervisors may want to keep track of an employee’s performance in order to, ultimately, be able to prepare an honest and accurate evaluation. However, the court noted that even though “many supervisors keep some sort of notes to prepare accurate annual employee reviews, . . . most supervisors are not operating under a statutory scheme similar to the one we have here, which requires that no adverse comment be entered in to any file used for personnel purposes ‘without the firefighter [or in the case of POBOR, a peace officer] having first read and signed the instrument.’”
Consultation with your agency’s legal counsel, to secure advice and guidance, is always important when interpreting the law. As such, we urge that be done when applying FFBOR or POBOR. As always, if you wish to discuss this case in greater detail, feel free to contact me at (714) 446 – 1400 or via email at mjm@jones-mayer.com.
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