Public Records Law Versus Firefighter Bill of Rights

A recent case involving the Anderson Fire Protection District, in California points out the challenges that sometimes occur when complying with open records laws. In May, 2009, the district board placed the fire chief on leave while it investigated allegations of misconduct.

The board hired a former police chief in Anderson to conduct the investigation, which  resulted in a 1,000 page report that cost the taxpayers a whopping $41,000 to prepare. The fire chief ended up resigning on July 1, 2009, but according to the Record Searchlight, neither the chief nor the board were forthcoming about the investigation. The newspaper felt that the cost of the report and the resignation were news worthy events that warranted full disclosure.

After its request for the report was rejected, the Record Searchlight sued the district in November, 2009 to obtain a copy under the Californian Public Records Act. Like open records laws in other states, the CPRA grants a right to the public to view public records unless the records fit within a specific exemption. While none of the exemptions were applicable under the circumstances, the district board felt that the California Firefighters Procedural Bill of Rights Act required them to withhold the report.

In a ruling issued in December, Shasta County Superior Court Judge Monica Marlow determined that the district wrongfully failed to comply with the public records law, and ordered the release of the report. The judge concluded "The public interest in disclosure outweighs the public interest that would be served by withholding the records."

According to the Record Searchlight, the report reveals that among other things, the fire chief watched pornographic material on the office computers, was observed to be intoxicated while in uniform, and sexually harassed and verbally abusive to his own employees. On January 25, 2010 Judge Marlow followed up her prior ruling with an award of attorneys fees, ordering the district to pay the newspaper $16,123.

About Curt Varone

Curt Varone has over 40 years of fire service experience and 30 as a practicing attorney licensed in both Rhode Island and Maine. His background includes 29 years as a career firefighter in Providence (retiring as a Deputy Assistant Chief), as well as volunteer and paid on call experience. He is the author of two books: Legal Considerations for Fire and Emergency Services, (2006, 2nd ed. 2011, 3rd ed. 2014) and Fire Officer's Legal Handbook (2007), and is a contributing editor for Firehouse Magazine writing the Fire Law column.
  • John K. Murphy

    Personally favoring the transparency of Government, the Public Records Act that is the law in many states is a double edged sword for public safety agencies. Depending on the state and its laws addressing this issue; it would be a smart move to name/appoint a member of the department to be the in-house “expert” on the release of records. This “in-house expert can work with outside counsel.
    In Washington State, there is the requirement to appoint (by an appointment process in an open public meeting) a person in-house to manage the Public Records Act requests or a records request in the Freedom of Information Act (FOIA). This person is the tip of the spear for records requests. Remember that some of the information requested is protected like Social Security numbers and certain health information under HIPAA.
    However, it is the law that records generated by a governmental agency are open to the public including your budget, meetings of the elected officials and probably your emails and correspondence
    The California Firefighters Procedural Bill of Rights Act has certain protected activities but is not a blanket protection against egregious activities in the fire house. The provisions of the Firefighters Bill of Rights act are:
    • Protections for certain “political activity”
    • Various protections when firefighters are under investigation, and subject to interrogation
    • No discrimination for exercise of rights under the new Act
    • Right to comment on adverse entries in personnel files
    • Right to inspect personnel files during business hours without loss of compensation
    • Effective January 1, 2008, one year statute of limitation for discipline actions
    • Prohibits requiring lie detector tests
    • Protects certain private information, such as financial information
    • Protects against searches of firefighter lockers and storage spaces
    • Penalties for non-compliance
    This is a nice way to protect your rights, but if you were not conducting yourself in manners as alleged then what is the point of these protections. In this case the Fire Chief was viewing pornographic material on the office computers, was observed to be intoxicated while in uniform, and sexually harassed and verbally abusive to his own employees and I am sure this was only the tip of the iceberg.
    Fire Chiefs should set the example for their firefighters to emulate. This is not good behavior and the fire chief should have been fired long ago.

  • An interesting twist to the discipline versus public record issue is: what if the employee had been given a grant of immunity under Garrity, said what he knew, and it was included in the investigators report. In fact, perhaps the remainder of the investigation was built on information given under the grant of immunity (fruit from the poisoned tree).
    Would granting a public record request such as occurred here potentially foreclose law enforcement’s ability to build a criminal case – because once the report is released – how can anyone say where the police got their information from?????? I am not sure that was the issue in the Anderson case – its not clear from the news reports, but certainly that should be a factor in whether or not the report should be released.

  • John K. Murphy

    The Garrity rule comes from the United States Supreme Court case of Garrity v. New Jersey. It is the right of a law enforcement officer or any other public employee including firefighters to be free from compulsory self-incrimination. The basic thrust of the Garrity Rule is that a department member may be compelled to give statements under threat of discipline or discharge but those statements may not be used in the criminal prosecution of the individual officer. The courts have held that choosing to work in a fire department or police department does not give a person a “watered-down” version of their Fifth Amendment right against self-incrimination.
    Before a public service agency can discipline an officer, firefighter or employee for refusing to answer questions, the agency must do the following:
    • Order the employee or officer to answer the questions under threat of disciplinary action,
    • Ask questions that are specifically, directly and narrowly related to the employee or officer’s duties or the officer’s fitness for duty, AND
    • Advise the employee or officer that the answers to the questions will not be used against the officer in criminal proceedings.
    After being given this warning and the employee or officer refuses to answer the questions, the officer may be disciplined for insubordination. When is an employee ordered to answer a question?
    The order can be oral, written or implied. An employee is ordered to answer a question if:
    • the employee or officer subjectively believes that he/she is compelled to give a statement upon threat of loss of job (or other discipline that would constitute a substantial economic penalty)
    • the employee or officer’s belief is objectively reasonable at the time the statement was made.
    What type of immunity is granted by the warning?
    A statement compelled by a Garrity warning is for immunity from prosecution in a subsequent criminal proceeding.
    The compelled statement may be used in other matters such as:
    • civil matters including a lawsuit against the department or the officer
    • disciplinary proceeding against the officer
    • disciplinary proceeding against another officer
    • criminal proceeding against another officer or other person
    Under what other circumstances can an employee or officer be ordered to give a statement?
    An employee or officer can be ordered to give a statement in any circumstance. The only issue is whether the order gives the officer immunity from self-incrimination. For example, you can order an employee or officer to give a statement against another employee or officer (i.e. if the officer is being questioned is not the subject of the investigation.)5 If there are no potential criminal sanctions (e.g. asking an employee whether they violated a work rule about computer use, or took too long of a work break, or was working out of an assigned area . . .) the officer can be ordered to give a statement.
    No immunity attaches because none is necessary. Garrity does not give an employee or officer the right to refuse to answer a question if there are non-criminal consequences attached such as termination or other discipline. However, assuring an employee that there are no potential criminal sanctions has the same practical effect of giving a Garrity warning – there is no possibility of criminal sanctions.
    Does the employee have any protections if the employee is untruthful in the compelled statement?
    If an individual is untruthful when giving the compelled statement, Garrity does not provide any additional protections to the employee for the consequences of lying in an administrative investigation. Having given the warning does not prohibit an employer from taking severe administrative action, including termination, against individuals who lie during an administrative investigation.
    Voluntary statements:
    • If the employee gives a voluntary statement, it can be used in a criminal matter against the employee.
    • The employee can refuse to give a voluntary statement and cannot be disciplined for refusing to make a voluntary statement without getting Garrity protections.
    • The employer is not required to take a compelled statement from the accused officer. The employer may to allow the employee to choose whether make a voluntary statement. This means that an employee facing a pre-disciplinary hearing may be faced with a choice of:
    o making no statement at the hearing and having the discipline based on the other evidence that has been obtained, or
    o making a voluntary statement which could be used against the employee in a subsequent criminal proceeding.
    • Having to make such a choice does not violate the employee’s constitutional rights.


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