CA Supreme Court Rules Officer’s Personal Notes NOT Subject to Personnel File Disclosure

The Supreme Court of California has handed down an important decision interpreting the Firefighters Procedural Bill of Rights Act (Gov. Code, § 3250) in regards to a firefighter’s right to know about negative comments entered into his/her personnel file.

The case was brought by Orange County firefighter Steve Poole who claimed that his captain, Brett Culp, had been keeping daily notes his performance in violation of a provision in the California Firefighters Procedural Bill of Rights Act (FPBOR). The section in question reads:

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.

After Poole received a “substandard” rating from Captain Culp, he contacted a union rep who subsequently learned of the daily notes and complained that the practice violated §3255. The Orange County Fire Authority took the position that Captain Culp’s notes were not part of Poole’s personnel file and that “while the notes were intended for personnel purposes, they were never ‘entered’ into any file” and thus were not subject to the provisions of §3255.

Poole and the Orange County Professional Firefighters Association sued the County for damages, injunctive relief and a writ of mandate requiring compliance with §3255. The trial court ruled in favor of the county, but in 2013 the California Court of Appeals ruled in favor of Poole concluding that “the files were used for personnel purposes and are subject to the protective procedures” required by the FPBOR. The county appealed to the California Supreme Court.

The supreme court concluded, in essence, that because the notes were fro Capatain Culp’s personal recollection and not per se entered into Poole’s personnel file, §3255 was not violated. In the court’s own words:

This case presents the question whether section 3255 gives an employee the right to review and respond to negative comments in a supervisor’s daily log, consisting of notes that memorialize the supervisor’s thoughts and observations concerning an employee, which the supervisor uses as a memory aid in preparing performance plans and reviews.

Captain Culp, plaintiff Steve Poole’s supervisor, maintained what he called a “daily log” regarding each of the employees that he supervised. He created the log using both a computer and handwritten notes. He created a separate file for each employee, stored on a flash drive and also in hard copy, which he kept in his desk with the employee’s name on it. He included in the log “[a]ny factual occurrence or occurrences that would aid [him] in writing a thorough and fair annual review.” He kept these logs throughout the time he was supervising each employee. Culp would address with the employee behavior recorded in the log about which he had concerns, and if the behavior nevertheless continued it might be mentioned in the performance review.

Captain Culp, the author of the daily log, was the only person who had access to it. He discussed some of the incidents described within it with his superiors and with human resources personnel, but it is undisputed that he did not permit them to review the log itself. To the extent Culp used any of the adverse comments contained in the log in any review or assessment of plaintiff’s performance, those comments were shared with plaintiff in accordance with section 3255.

[W]e conclude that any negative comments contained in the log that were not included in a performance review or performance improvement plan concerning plaintiff were not entered in a file “used for any personnel purposes by his or her employer.”

A supervisor’s log that is used solely to help its creator remember past events does not fall within the scope of [the definition of a personnel file]. Even if a supervisor uses his or her notes to help draft performance evaluations and other documents that ultimately are placed in a personnel file, the notes themselves are not a file preserved by the employer for use in making decisions about the firefighter’s employment status.

[T]here is no evidence that Culp’s log would be available to anyone making personnel decisions in the future. The log was available to no one other than Culp himself. Many of the potentially negative comments contained in the log were never included in any document made available to plaintiff’s employer, because Culp either deemed the incidents inconsequential or resolved them in plaintiff’s favor.

Here is a copy of the ruling: Poole v Orange County CA SC

About Curt Varone

Curt Varone has over 45 years of fire service experience and 35 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, 4th ed. 2022) and Fire Officer's Legal Handbook (2007), and is a contributing editor for Firehouse Magazine writing the Fire Law column.
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