Right of Firefighters to Be Informed of Adverse Comments Kept By Officers

Today’s burning question No. 1: I am a firefighter in California and my officer hates me. No matter what I do, I can't win. I think he has been submitting negative things to my personnel file. Do I have any recourse?

Answer: Yes, you likely do have some recourse. The first is a fundamental issue of due process. You generally have a due process right to be informed that a negative comment has been placed in your personnel file (a right to notice) and you have the right to an opportunity to rebut or explain what allegedly occurred. There are a few assumptions (that you are a public employee and that you have an expectation of continued employment), but that right is pretty universal.

The second recourse is a bit more complicated to fully explain because it involves the California Firefighters Procedural Bill of Rights!!!! However, it offers even more protection than due process.

Under the Bill of Rights, and more specifically California Government Code §3255:

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.

Seems pretty clear cut to me!!!!!

Today’s burning question No. 2: I am fire captain in California. I have a firefighter who is a real piece of work. He just can never seem to get his act together and when something happens it is always someone else’s fault. It is to the point where I have to document everything he does wrong so that during his periodic review I can say – on this date you did A, on this date you did B, and this date you did C, so that is why I am giving you this rating. If I cannot document it, he denies it ever happened or he tries to blame someone else.

I am OK with writing this stuff down to keep it for my own recollection? It doesn’t go in his personnel file. Actually it is for my own sanity.

Answer: Oh brother, here we go again….  At what point does an officer have the right to keep written notes that do not go into the employee's personnel file, and that remain separate for the officer’s own personal recollection and documentation?

That issue came squarely into focus in one of the first appellate decisions interpreting California’s Firefighters Procedural Bill of Rights, adopted in 2007. The case was Poole v. Orange County Fire Authority, decided yesterday by the California Court of Appeals.

In the case, FF Steve Poole objected to the fact that his captain maintained personal notes about his behavior that would be used at the time of his periodic personnel review. Poole and his union filed suit seeking a court order requiring the OCFA to treat those notes that the captain was maintaining in accordance with § 3255. In the court’s words:

  • The issue presented is whether the daily logs maintained on firefighters and used to prepare evaluations qualify either as a personnel file or a file used for personnel purposes. Poole contends to the extent the notes contained comments adverse to him, he was entitled to review the daily logs in his file and to file a written response to each adverse comment. We conclude the files were used for personnel purposes and are subject to the protective procedures instituted in FFBOR
  • [I]t is evident the daily logs affected Poole‟s job status
  • The evidence does not provide any reason to believe Poole was provided an opportunity to respond
  • FFBOR‟s purpose of providing firefighters a right to meaningfully respond to adverse comments that may affect personnel decisions concerning the firefighter
  • [The captain] kept the logs to help him remember events when preparing personnel evaluations at the end of the year. Poole could not be expected to remember the details of the same events months and months later when he was finally made aware of the adverse comments in the course of a yearly performance review. For example, [the captain] found fault in Poole’s failure to perform certain cleanup duties on a particular occasion. Hypothetically, had Poole agreed with another firefighter to switch cleanup duties on that day it would be unreasonable to expect he would remember the details of the arrangement months later, and be able correct what would otherwise have been an inaccurate or incomplete statement in his yearly performance review.
  • OCFA admits the daily logs were kept for personnel purposes. In addition, the daily logs were used to place Poole on an improvement plan. Because 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.

Here is a copy of the ruling. Poole v Orange County

Interestingly, the court noted:  In the trial court, counsel for OCFA and Poole conceded that if [the captain] had written the evaluation from his memory there would have been no lawsuit.

The ruling has no applicability outside the State of California, but certainly fire officers within the state need to be mindful that the notes you keep about your subordinates are subject to §3255… even if they are a piece of work!!!

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.
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