386058 a guide to the firefighters procedural bill of rights act prepared for cdf firefighters by:...

A GUIDE TO THE A GUIDE TO THE FIREFIGHTERS FIREFIGHTERS PROCEDURAL BILL OF PROCEDURAL BILL OF RIGHTS ACTRIGHTS ACTPrepared for CDF Firefighters by:Prepared for CDF Firefighters by:

Gary Messing, CDF Firefighters Chief Legal Gary Messing, CDF Firefighters Chief Legal Counsel and CB&M Labor PartnerCounsel and CB&M Labor Partner&&Jason Jasmine, CB&M Labor AssociateJason Jasmine, CB&M Labor Associate

CARROLL, BURDICK & McDONOUGH LLPSACRAMENTO OFFICE: 1007 7TH STREET, SUITE 200, SACRAMENTO, CA 95814, (916) 446-5297SAN FRANCISCO OFFICE: 44 MONTGOMERY STREET, SUITE 400, SAN FRANCISCO, CA 94104, (415) 989-5900

FIREFIGHTERS FIREFIGHTERS PROCEDURAL BILL OF PROCEDURAL BILL OF RIGHTS ACT RIGHTS ACT

Government Code § 3250Government Code § 3250.. This chapter shall be known, and may be cited, as This chapter shall be known, and may be cited, as the the Firefighters Procedural Bill of Rights ActFirefighters Procedural Bill of Rights Act..

CARROLL, BURDICK & McDONOUGH LLP


Government Code § 3251. Government Code § 3251.

Definitions Definitions "Firefighter" means any firefighter "Firefighter" means any firefighter

employed by a public agency, including, employed by a public agency, including, but not limited to, any firefighter who is but not limited to, any firefighter who is a paramedic or emergency medical a paramedic or emergency medical technician, technician, irrespective of rank, but does of rank, but does notnot include include probationaryprobationary employees or employees or inmates performing firefighting duties.inmates performing firefighting duties.

Does the act cover volunteers? Seasonal firefighters? Limited Does the act cover volunteers? Seasonal firefighters? Limited

term firefighters?term firefighters?


Government Code § 3251. Government Code § 3251.

Definitions [cont.] Definitions [cont.] ""Punitive actionPunitive action"" means any action that means any action that may lead tomay lead to

dismissal,demotion, suspension, reduction in salary, written dismissal,demotion, suspension, reduction in salary, written reprimand, or transfer for purposes of punishment.reprimand, or transfer for purposes of punishment.

White v. County of SacramentoWhite v. County of Sacramento (1982) 31 Cal.3d 676 - “For purposes of (1982) 31 Cal.3d 676 - “For purposes of punishment” only modifies the word “transfer”.punishment” only modifies the word “transfer”.

McManigal v. City of Seal Beach McManigal v. City of Seal Beach (1985) 166 Cal.App.3d 975 – Transfer (1985) 166 Cal.App.3d 975 – Transfer resulting in loss of pay is per se punitive.resulting in loss of pay is per se punitive.

Henneberque v. City of Culver CityHenneberque v. City of Culver City (1983) 147 Cal.App.3d 250 – Permanent (1983) 147 Cal.App.3d 250 – Permanent employee on probation in new position is entitled to administrative appeal employee on probation in new position is entitled to administrative appeal from demotion (and corresponding salary decrease).from demotion (and corresponding salary decrease).

Otto v. Los Angeles Unified School DistrictOtto v. Los Angeles Unified School District (2001) 89 Cal.App.4th 985 – “May (2001) 89 Cal.App.4th 985 – “May lead to …” (Inicludes a “summary of conference” memo which warned of lead to …” (Inicludes a “summary of conference” memo which warned of possible future disciplinary action).possible future disciplinary action).

Turturici v. City of Redwood CityTurturici v. City of Redwood City (1987) 190 Cal.App.3d 1447 – Routine (1987) 190 Cal.App.3d 1447 – Routine negative evaluations are not punitive action. negative evaluations are not punitive action.


Government Code § 3252 Government Code § 3252 Political Activity Political Activity

Unless a firefighter is on duty or in Unless a firefighter is on duty or in uniform, he or she may not be uniform, he or she may not be prohibited from engaging or prohibited from engaging or coerced/required to engage in coerced/required to engage in political activitypolitical activity, nor shall a , nor shall a firefighter be prohibited from firefighter be prohibited from seeking electionseeking election to the board of to the board of any city, county, district, or agency any city, county, district, or agency where the firefighter is not where the firefighter is not employed. employed.


Government Code § 3253 Government Code § 3253 Interrogation Interrogation When any firefighter is When any firefighter is under under

investigationinvestigation and and subjected to subjected to interrogationinterrogation … that … that could lead to could lead to punitive actionpunitive action, the interrogation shall , the interrogation shall be conducted under the following be conducted under the following conditions:conditions:

CCPOA v. State of CaliforniaCCPOA v. State of California (2000) 82 Cal.App.4th 294 – Questions by an outside (2000) 82 Cal.App.4th 294 – Questions by an outside agency can trigger the protections listed below. In this case, witnesses were told agency can trigger the protections listed below. In this case, witnesses were told they must answer or be suspended. The targets of the investigation were told they must answer or be suspended. The targets of the investigation were told they must answer or be immediately arrested.they must answer or be immediately arrested.

City of Los Angeles v. Superior Court (Labio)City of Los Angeles v. Superior Court (Labio) (1997) 57 Cal.App.4th 1506 – Any (1997) 57 Cal.App.4th 1506 – Any inquiry into sanctionable conduct triggers the protections listed below. The inquiry inquiry into sanctionable conduct triggers the protections listed below. The inquiry need not be a formal investigation. need not be a formal investigation.


Government Code § Government Code § 3253(a)3253(a)Interrogation [cont.] Interrogation [cont.] (1) Conducted at a (1) Conducted at a reasonable hourreasonable hour;;

(2) Conducted (2) Conducted on-dutyon-duty, unless there is an , unless there is an imminent public safety threat;imminent public safety threat;

(3) If conducted (3) If conducted off-dutyoff-duty, Firefighter must , Firefighter must be be compensatedcompensated;;

(4)(4) No loss of compensationNo loss of compensation for missing for missing work while being interrogated.work while being interrogated.


Government Code § 3253(b)-Government Code § 3253(b)-(d)(d)Interrogation [cont.] Interrogation [cont.] A Firefighter under investigation shall be informed of the A Firefighter under investigation shall be informed of the

person in chargeperson in charge of the interrogation, have no more of the interrogation, have no more than than two interrogatorstwo interrogators at one time, and at one time, and be informed be informed of the natureof the nature of the investigation prior to any of the investigation prior to any interrogation.interrogation.

City of Los Angeles v. Superior Court (Labio)City of Los Angeles v. Superior Court (Labio) (1997) 57 Cal.App.4th (1997) 57 Cal.App.4th 1506 – Statements obtained in violation of these rules, even in an 1506 – Statements obtained in violation of these rules, even in an informal investigation, can be suppressed. (Labio drove by fatal informal investigation, can be suppressed. (Labio drove by fatal accident in a marked patrol vehicle to a doughnut shop. He was accident in a marked patrol vehicle to a doughnut shop. He was questioned without being advised that he was under investigation, questioned without being advised that he was under investigation, without being advised of his Miranda rights. If he were informed he without being advised of his Miranda rights. If he were informed he might have taped the discussion and requested a representative).might have taped the discussion and requested a representative).

The interrogation shall be for a The interrogation shall be for a reasonable period of reasonable period of timetime, and the Firefighter must be allowed , and the Firefighter must be allowed reasonable reasonable breaksbreaks. .


Government Code § Government Code § 3253(e)3253(e)Criminal Immunity: Criminal Immunity: Before the employer can compel a Firefighter to respond to Before the employer can compel a Firefighter to respond to

incriminating questions, the employer “shall provide to, incriminating questions, the employer “shall provide to, and and obtain fromobtain from, an employee a , an employee a formal grant of immunityformal grant of immunity from criminal prosecution, in writing.” If a grant of immunity from criminal prosecution, in writing.” If a grant of immunity is obtained, the Firefighter must be informed that the failure is obtained, the Firefighter must be informed that the failure to answer questions may result in punitive action.to answer questions may result in punitive action.

No Lybarger warning as under POBR. See No Lybarger warning as under POBR. See Lybarger v. City of Los AngelesLybarger v. City of Los Angeles (1985) 40 Cal.3d 822.(1985) 40 Cal.3d 822.

This is a response to This is a response to Spielbauer v. County of Santa ClaraSpielbauer v. County of Santa Clara (2007) 53 (2007) 53 Cal.Rptr.3d 357. The California Supreme Court has granted review in Cal.Rptr.3d 357. The California Supreme Court has granted review in SpielbauerSpielbauer. .

While this section appears to require a formal grant of immunity, the While this section appears to require a formal grant of immunity, the language is very ambiguous.language is very ambiguous.

Also, because this section differs from the POBR, it raises the question of Also, because this section differs from the POBR, it raises the question of whether the POBR or the FFBOR would prevail in a situation where the whether the POBR or the FFBOR would prevail in a situation where the employee is both a Firefighter and a Peace Officer. employee is both a Firefighter and a Peace Officer.


Government Code § 3253(e)Government Code § 3253(e)(2)(2)Media Media A Firefighter’s A Firefighter’s photograph and photograph and

contact informationcontact information shall not shall not be given to the media, nor shall be given to the media, nor shall the Firefighter be subjected to the Firefighter be subjected to visits by the media without visits by the media without express written consent of the express written consent of the Firefighter. Firefighter.


Government Code § 3253(f)Government Code § 3253(f)Coerced Statements (Lybarger Coerced Statements (Lybarger Immunity) Immunity)

A statement made during interrogation by a A statement made during interrogation by a Firefighter under threat of punitive action Firefighter under threat of punitive action shall not be admissibleshall not be admissible in any subsequent in any subsequent judicial proceeding, judicial proceeding, exceptexcept when: when:– (1) The department is seeking (1) The department is seeking civil service civil service

sanctionssanctions against any firefighter, including against any firefighter, including disciplinary action brought under Section 19572.disciplinary action brought under Section 19572.

– (2) The Firefighter or his or her association has (2) The Firefighter or his or her association has brought a brought a civil or administrative action, arising civil or administrative action, arising out of a disciplinary actionout of a disciplinary action..

Hanna v. City of Los AngelesHanna v. City of Los Angeles (1989) 212 Cal.App.3d 363 (1989) 212 Cal.App.3d 363 – Exclusion of statements that could impact the outcome – Exclusion of statements that could impact the outcome of a disciplinary case.of a disciplinary case.


Government Code § Government Code § 3253(g)3253(g)Recorded Statements Recorded Statements The interrogation of a Firefighter may be The interrogation of a Firefighter may be recordedrecorded, ,

and the Firefighter may bring his or her own recording and the Firefighter may bring his or her own recording device. The Firefighter shall have device. The Firefighter shall have accessaccess to any to any recording prior to any further interrogation. The recording prior to any further interrogation. The firefighter is firefighter is entitled to a transcribed copy of any entitled to a transcribed copy of any notes made by a stenographer or any reports or notes made by a stenographer or any reports or complaints made by investigators or other complaints made by investigators or other personperson, except those portions that are required by law , except those portions that are required by law to be kept confidential. Confidential notes or reports to be kept confidential. Confidential notes or reports shall not be entered in the firefighter's personnel file. shall not be entered in the firefighter's personnel file.

Pasadena POA v. City of PasadenaPasadena POA v. City of Pasadena (1990) 51 Cal.3d 564 – (1990) 51 Cal.3d 564 – No pre-interrogation discovery. However, a transcript or tape of the No pre-interrogation discovery. However, a transcript or tape of the employee’s own prior interrogation is available at any follow-up employee’s own prior interrogation is available at any follow-up interrogation. No right to complaints and reports until receipt of interrogation. No right to complaints and reports until receipt of SkellySkelly package. package.


Government Code § Government Code § 3253(h)3253(h)Miranda Rights Miranda Rights If, prior to or during the If, prior to or during the

interrogation of a firefighter, it is interrogation of a firefighter, it is contemplated that he or she may contemplated that he or she may be charged with a criminal be charged with a criminal offense, he or she shall be offense, he or she shall be immediately informed of his or immediately informed of his or her constitutional rights.her constitutional rights.[See Criminal Immunity - § 3253(e) and Lybarger Immunity - § [See Criminal Immunity - § 3253(e) and Lybarger Immunity - §

3253(f)]3253(f)]


Government Code § Government Code § 3253(i)3253(i)Right to Representation Right to Representation Whenever an interrogation may result in punitive action against a firefighter, that Whenever an interrogation may result in punitive action against a firefighter, that

firefighter shall have the right to a firefighter shall have the right to a representative of his or her choicerepresentative of his or her choice present at all present at all

times during the interrogation. The representative shall not be a person subject to the times during the interrogation. The representative shall not be a person subject to the

same investigation. The representative shall same investigation. The representative shall not be required to disclosenot be required to disclose, or be , or be

subject to any punitive action for refusing to disclose, any information received from the subject to any punitive action for refusing to disclose, any information received from the

firefighter under investigation for firefighter under investigation for noncriminal mattersnoncriminal matters. This . This does not apply to does not apply to

counseling, instruction, or informal verbal admonishment by, or other routine counseling, instruction, or informal verbal admonishment by, or other routine

or unplanned contact with, a supervisor or any other firefighteror unplanned contact with, a supervisor or any other firefighter..

--Titus v. Civil Service CommissionTitus v. Civil Service Commission (1982) 130 Cal.App.3d 357 – Attorney-client privilege vs. Police (1982) 130 Cal.App.3d 357 – Attorney-client privilege vs. Police

Officer’s law enforcement duties. (Discharge of Lieutenant, who was also an attorney, upheld where he Officer’s law enforcement duties. (Discharge of Lieutenant, who was also an attorney, upheld where he

refused, due to attorney-client privilege, to disclose name and identity of individual possessing refused, due to attorney-client privilege, to disclose name and identity of individual possessing

dynamite).dynamite).

-- Redwoods Community College District v. Public Employment Relations Board Redwoods Community College District v. Public Employment Relations Board (1984) 159 Cal.App.3d (1984) 159 Cal.App.3d

617 - Although this section purports to exclude representation for “counseling” this case held that in 617 - Although this section purports to exclude representation for “counseling” this case held that in

some (unusual) circumstances, right to representation exists for counseling under bargaining laws.some (unusual) circumstances, right to representation exists for counseling under bargaining laws.

- Upland POA v. City of Upland- Upland POA v. City of Upland (2003) 111 Cal.App.4th 1294 – Employee entitled to a “reasonably (2003) 111 Cal.App.4th 1294 – Employee entitled to a “reasonably

available representative of his or her choice.” Court also implied a “mutually agreeable time.” available representative of his or her choice.” Court also implied a “mutually agreeable time.”


Government Code § Government Code § 3253(j)3253(j)Assignments Assignments A firefighter shall not be loaned or A firefighter shall not be loaned or

temporarily reassigned to a location or temporarily reassigned to a location or duty assignment if a firefighter in his duty assignment if a firefighter in his or her department would or her department would not not normallynormally be sent to that location or be sent to that location or would not normally be given that duty would not normally be given that duty assignment assignment under similar under similar circumstancescircumstances..

Crupi v. City of Los AngelesCrupi v. City of Los Angeles (1990) 219 Cal.App.3d 1111. (Being (1990) 219 Cal.App.3d 1111. (Being assigned to a desk job was normal for officers involved in shootings, assigned to a desk job was normal for officers involved in shootings, until the officers are cleared by a psychiatrist).until the officers are cleared by a psychiatrist).


Government Code § 3254Government Code § 3254Punitive Action Punitive Action

A firefighter A firefighter shall notshall not be subjected be subjected to or threatened with to or threatened with punitive punitive actionaction, or denied promotion, , or denied promotion, because of the because of the lawful exercise of lawful exercise of the rightsthe rights granted granted under this under this ActAct, or under , or under anyany existing existing administrative grievance procedure.administrative grievance procedure.

[Court v. PERB/Arbitration? See § 3260].[Court v. PERB/Arbitration? See § 3260].


Government Code § 3254Government Code § 3254Punitive Action (Administrative Punitive Action (Administrative Appeal) Appeal)

Punitive action or denial of promotion Punitive action or denial of promotion on grounds other than merit shall not on grounds other than merit shall not be undertaken against any non-be undertaken against any non-probationary firefighter without probationary firefighter without providing the firefighter with an providing the firefighter with an opportunityopportunity for for administrative administrative appealappeal..

Giuffre v. SparksGiuffre v. Sparks (1999) 76 Cal.App.4th 1322 – Due Process (property interest). (1999) 76 Cal.App.4th 1322 – Due Process (property interest).(Removal from SWAT, with a pay reduction, entitled officer to full evidentiary (Removal from SWAT, with a pay reduction, entitled officer to full evidentiary appeal).appeal).

Butler v. County of Los AngelesButler v. County of Los Angeles (1981) 116 Cal.App.3d 633 – Opportunity for (1981) 116 Cal.App.3d 633 – Opportunity for appeal comes appeal comes afterafter action is taken. action is taken.

Orange County Employees Association v. County of OrangeOrange County Employees Association v. County of Orange (1988) 205 (1988) 205 Cal.App.3d 1289 – No appeal from transfer for “deficiency in performance.”Cal.App.3d 1289 – No appeal from transfer for “deficiency in performance.”

James v. City of CoronadoJames v. City of Coronado (2003) 106 Cal.App.4th 905 – For some discipline, (2003) 106 Cal.App.4th 905 – For some discipline, hearing need not be a “due process hearing”, unless there is a loss of pay.hearing need not be a “due process hearing”, unless there is a loss of pay.


Government Code § 3254 Government Code § 3254 Punitive Action (Fire Punitive Action (Fire Chief) Chief) A fire chief shall not be removed without A fire chief shall not be removed without

written notice and an opportunity for written notice and an opportunity for administrative appealadministrative appeal. Nothing in this . Nothing in this subdivision shall be construed to create a subdivision shall be construed to create a property interestproperty interest, if one does not , if one does not otherwise exist by rule or law, in the job of otherwise exist by rule or law, in the job of fire chief.fire chief.

Establish record – name clearing hearing. Establish record – name clearing hearing. Binkley v. City of Long Binkley v. City of Long BeachBeach (1993) 16 Cal.App.4th 1795. (1993) 16 Cal.App.4th 1795.

Impartial hearing officer required – Impartial hearing officer required – Gray v. City of GustineGray v. City of Gustine (1990) (1990) 224 Cal.App.3d 621.224 Cal.App.3d 621.

Who is a “fire chief” in CDF?Who is a “fire chief” in CDF?


Government Code § 3254Government Code § 3254Punitive Action (Limitations Punitive Action (Limitations Period) Period) Punitive action or denial of promotion on grounds other than merit Punitive action or denial of promotion on grounds other than merit

shall not be undertaken if the investigation of an allegation is not shall not be undertaken if the investigation of an allegation is not completed completed within one year of discoverywithin one year of discovery, if the discovery of the act, , if the discovery of the act, omission, or other misconduct occurred on or after January 1, 2008. If omission, or other misconduct occurred on or after January 1, 2008. If it is determined that discipline may be taken, the investigation must it is determined that discipline may be taken, the investigation must be completed and the firefighter must be notified of the proposed be completed and the firefighter must be notified of the proposed disciplinary action within one year, except in any of the following disciplinary action within one year, except in any of the following circumstances:circumstances:

Sanchez v. City of Los AngelesSanchez v. City of Los Angeles (2006) 140 Cal.App.4th 1069 – Upholds one-year statute of (2006) 140 Cal.App.4th 1069 – Upholds one-year statute of limitations. While the one-year statute of limitations is still applicable, the California Supreme limitations. While the one-year statute of limitations is still applicable, the California Supreme Court, in Court, in Mays v. City of Los AngelesMays v. City of Los Angeles (4/17/08),--- Cal.Rptr.3d ----, 2008 WL 1745210, held that (4/17/08),--- Cal.Rptr.3d ----, 2008 WL 1745210, held that the analogous section of the POBR merely requires that the public agency must notify the the analogous section of the POBR merely requires that the public agency must notify the employee that it has decided that it might take some type of disciplinary action against the employee that it has decided that it might take some type of disciplinary action against the officer for certain, specified misconduct. Notice of the specific level of discipline to be officer for certain, specified misconduct. Notice of the specific level of discipline to be imposed is no longer required.imposed is no longer required.

Alameida v. State Personnel Board Alameida v. State Personnel Board (2004) 120 Cal.App.4th 46 – Officer’s denial of charges (2004) 120 Cal.App.4th 46 – Officer’s denial of charges during administrative interview did not constitute a separate offense for the purposes of during administrative interview did not constitute a separate offense for the purposes of extending the statute of limitations. extending the statute of limitations.

But see, But see, CCPOA v. SPBCCPOA v. SPB (2007) 147 Cal.App.4th 797 – Extensive lying during administrative (2007) 147 Cal.App.4th 797 – Extensive lying during administrative interview can constitute a separate offense triggering a new one year statute of limitations interview can constitute a separate offense triggering a new one year statute of limitations period. (Unlike period. (Unlike AlameidaAlameida, the charges were only a few months past the statute of limitations , the charges were only a few months past the statute of limitations period, so memories were still fresh. Additionally, the dishonesty was not simply a denial of period, so memories were still fresh. Additionally, the dishonesty was not simply a denial of charges, but concerned a variety of issues regarding the investigation).charges, but concerned a variety of issues regarding the investigation).


Government Code § 3254Government Code § 3254Punitive Action (Limitations Punitive Action (Limitations Period. Exceptions.) Period. Exceptions.) 1.1. If the firefighter waives the one-year If the firefighter waives the one-year

time period, the period shall be tolled time period, the period shall be tolled for the time specified in the for the time specified in the written written waiverwaiver..

2.2. If the allegation of misconduct is also If the allegation of misconduct is also the subject of a the subject of a criminal criminal investigationinvestigation or prosecution, the time or prosecution, the time during which the criminal investigation during which the criminal investigation or prosecution is pending shall toll the or prosecution is pending shall toll the one-year time period. one-year time period.


Government Code § 3254Government Code § 3254Punitive Action (Limitations Punitive Action (Limitations Period. Exceptions.) Period. Exceptions.) 3.3. If the investigation is If the investigation is multijurisdictionalmultijurisdictional

and requires a reasonable and requires a reasonable extensionextension for for coordination of the involved agencies.coordination of the involved agencies.

4.4. If the investigation involves an employee If the investigation involves an employee who is who is incapacitated or unavailableincapacitated or unavailable..

5.5. If the investigation involves a matter in If the investigation involves a matter in civil litigationcivil litigation where the firefighter is where the firefighter is named as a named as a defendantdefendant, the one-year time , the one-year time period shall be period shall be tolledtolled while that civil while that civil action is pending. action is pending.


Government Code § 3254Government Code § 3254Punitive Action (Limitations Punitive Action (Limitations Period. Exceptions.) Period. Exceptions.) 6.6. If the investigation involves a matter in If the investigation involves a matter in

criminal litigation in which the criminal litigation in which the complainant is a criminal complainant is a criminal defendantdefendant, the one-year time period , the one-year time period shall be shall be tolled tolled during the period of during the period of that defendant's criminal investigation that defendant's criminal investigation and prosecution.and prosecution.

7.7. If the investigation involves an If the investigation involves an allegation of workers' compensation allegation of workers' compensation fraud by the firefighter. fraud by the firefighter.


Government Code § 3254Government Code § 3254Punitive Action (Notification Punitive Action (Notification Period) Period) If the If the employing department or licensing employing department or licensing

or certifying agencyor certifying agency [includes EMT [includes EMT Certification, Paramedics License, etc.] Certification, Paramedics License, etc.] decides to impose discipline, that agency decides to impose discipline, that agency shall notify the firefighter in writing of its shall notify the firefighter in writing of its decision to impose discipline decision to impose discipline within 30 days within 30 days of its decisionof its decision, but , but not less than 48 not less than 48 hours priorhours prior to imposing the discipline. to imposing the discipline.

Due process requires a pre-disciplinary hearing, and an evidentiary Due process requires a pre-disciplinary hearing, and an evidentiary appeal after imposition of the discipline. appeal after imposition of the discipline. Skelly v. State Personnel Skelly v. State Personnel BoardBoard (1975) 15 Cal.3d 194. However, in the case of short term (1975) 15 Cal.3d 194. However, in the case of short term suspensions (generally 5 days or less), no pre-disciplinary hearing is suspensions (generally 5 days or less), no pre-disciplinary hearing is required – rather the hearing may occur shortly after the imposition required – rather the hearing may occur shortly after the imposition of the penalty. of the penalty. Ng v. State Personnel BoardNg v. State Personnel Board (1977) 68 Cal.App.3d (1977) 68 Cal.App.3d 600; 600; Civil Service Association, Local 400 v. City and County of San Civil Service Association, Local 400 v. City and County of San FranciscoFrancisco (1978) 79 Cal.3d 540). (1978) 79 Cal.3d 540).


Government Code § 3254Government Code § 3254Punitive Action (Reopening of Punitive Action (Reopening of Investigation) Investigation)

An investigation may be reopened An investigation may be reopened after the one-year limitations period if:after the one-year limitations period if:– (1) Significant (1) Significant new evidencenew evidence has been has been

discovered that is likely to affect the discovered that is likely to affect the outcome of the investigation, outcome of the investigation, andand

– (2) The evidence could (2) The evidence could not reasonably not reasonably have been discoveredhave been discovered in the normal in the normal course of investigation course of investigation oror the evidence the evidence resulted from the resulted from the firefighter's firefighter's predisciplinary responsepredisciplinary response. .


Government Code § Government Code § 3254.53254.5Administrative Appeals Administrative Appeals (APA) (APA) Administrative appeals “shall be Administrative appeals “shall be

conducted in conformance with the conducted in conformance with the rules and procedures adopted by the rules and procedures adopted by the employing department or licensing or employing department or licensing or certifying agency, that are in certifying agency, that are in accordance with the California accordance with the California Administrative Procedure Act (“APA”). Administrative Procedure Act (“APA”).

CDF Firefighter appeals are to the SPB, which has rules that CDF Firefighter appeals are to the SPB, which has rules that appear to be consistent with the APA.appear to be consistent with the APA.


Government Code § 3255Government Code § 3255Personnel Files (Adverse Personnel Files (Adverse Comments) Comments) A firefighter shall not have any adverse comments A firefighter shall not have any adverse comments

entered in a entered in a personnel filepersonnel file (or any other file used for (or any other file used for personnel purposes), without the firefighter having personnel purposes), without the firefighter having first read and signedfirst read and signed the instrument containing the the instrument containing the adverse comment indicating he or she is aware of the adverse comment indicating he or she is aware of the comment. If the firefighter has read the instrument comment. If the firefighter has read the instrument and and refuses to sign itrefuses to sign it, that fact shall be , that fact shall be notednoted on on the document, signed or initialed by the firefighter, the document, signed or initialed by the firefighter, and then the entry may be made.and then the entry may be made.

Miller v. Chico Unified School DistrictMiller v. Chico Unified School District (1979) 24 Cal.3d 703. Under the (1979) 24 Cal.3d 703. Under the Education Code, any file used for personnel purposes is a personnel file.Education Code, any file used for personnel purposes is a personnel file.

Sacramento POA v. VenegasSacramento POA v. Venegas (2002) 101 Cal.App.4th 916 – an index card (2002) 101 Cal.App.4th 916 – an index card regarding an allegation of neglect of duty is an adverse comment.regarding an allegation of neglect of duty is an adverse comment.

Haight v. City of San DiegoHaight v. City of San Diego (1991) 228 Cal.App.3d 413 – Excludes negative (1991) 228 Cal.App.3d 413 – Excludes negative comments in promotional exam. This section does not cover promotional comments in promotional exam. This section does not cover promotional exams.exams.


Government Code § 3256Government Code § 3256Personnel Files (Response to Personnel Files (Response to Adverse Comments) Adverse Comments) A firefighter shall have A firefighter shall have 30 days30 days

within which to file a within which to file a written written responseresponse to any adverse to any adverse comment entered in his or her comment entered in his or her personnel file. The written personnel file. The written response shall be attached to, response shall be attached to, and shall accompany, the adverse and shall accompany, the adverse comment. comment.


Government Code § Government Code § 3256.53256.5Personnel Files Personnel Files (Inspection) (Inspection) Employers must keep Firefighters’ Employers must keep Firefighters’

personnel files. Firefighters have personnel files. Firefighters have the right to the right to inspectinspect their their personnel files within a personnel files within a reasonable periodreasonable period of time after of time after making a request, during normal making a request, during normal business hours, with business hours, with no loss of no loss of compensationcompensation. .


Government Code § 3256.5Government Code § 3256.5Personnel Files (Inspection, Personnel Files (Inspection, cont.) cont.) If a firefighter believes that any material is mistakenly If a firefighter believes that any material is mistakenly

or unlawfully placed in their personnel file, the or unlawfully placed in their personnel file, the firefighter may request, in writing, that the firefighter may request, in writing, that the mistaken mistaken or unlawfulor unlawful portion be portion be corrected or deletedcorrected or deleted. Within . Within 30 calendar days of the request, the employer shall 30 calendar days of the request, the employer shall either grant the request or notify the firefighter of the either grant the request or notify the firefighter of the refusal to grant the request. If the employer refuses to refusal to grant the request. If the employer refuses to grant the request, the employer shall state, grant the request, the employer shall state, iin writing, n writing, the reasons for refusing the requestthe reasons for refusing the request, and that , and that statement shall become part of the personnel file. statement shall become part of the personnel file.

Rosales v. City of Los AngelesRosales v. City of Los Angeles (2000) 82 Cal.App.4 (2000) 82 Cal.App.4thth 419 - Despite the 419 - Despite the confidentiality of peace officer personnel records under Penal Code confidentiality of peace officer personnel records under Penal Code sections 832.5 and 832.7, no remedy is set forth in the statutes, so sections 832.5 and 832.7, no remedy is set forth in the statutes, so there is no right to bring a private lawsuit for disclosure of confidential there is no right to bring a private lawsuit for disclosure of confidential personnel records.personnel records.


Government Code § 3257Government Code § 3257“Lie Detector” “Lie Detector” A Firefighter cannot be compelled to A Firefighter cannot be compelled to

submit to a submit to a lie detector testlie detector test, and , and refusal to submit cannot be noted or refusal to submit cannot be noted or used against the Firefighter.used against the Firefighter.

Estes v. City of Grover CityEstes v. City of Grover City (1978) 82 Cal.App.3d 509 – Establishes (1978) 82 Cal.App.3d 509 – Establishes an exclusionary rule.an exclusionary rule.

Aengst v. Board of Medical Quality AssuranceAengst v. Board of Medical Quality Assurance (1980) 110 Cal.App.3d (1980) 110 Cal.App.3d 275 – Even voluntary exams are not admissible.275 – Even voluntary exams are not admissible.

Los Angeles Police Protective League v. City of Los AngelesLos Angeles Police Protective League v. City of Los Angeles (1995) (1995) 35 Cal.App.4th 1535 – No prohibition on use of lie detector for 35 Cal.App.4th 1535 – No prohibition on use of lie detector for screening for voluntary transfer to sensitive assignments. screening for voluntary transfer to sensitive assignments.


Government Code § 3258Government Code § 3258Disclosure of Assets Disclosure of Assets

A Firefighter cannot be A Firefighter cannot be required or requested to required or requested to disclose his or her disclose his or her assets, assets, income, or debtsincome, or debts unless unless required under state law or required under state law or pursuant to court order. pursuant to court order.


Government Code § 3259Government Code § 3259Locker Search Locker Search

Your employer cannot search your Your employer cannot search your locker or other space for storagelocker or other space for storage unless you are unless you are presentpresent, or you , or you consentconsent, or you have been notified , or you have been notified that a search will be conducted, or that a search will be conducted, or unless a valid search warrant has been unless a valid search warrant has been obtained.obtained.

O’Connor v. OrtegaO’Connor v. Ortega (1987) 480 U.S. 709. – Establishes (1987) 480 U.S. 709. – Establishes standards for “reasonable expectations of privacy” under the standards for “reasonable expectations of privacy” under the 44thth Amendment to the U.S. Constitution. Amendment to the U.S. Constitution.


Government Code § 3260Government Code § 3260Enforcement of this Act Enforcement of this Act

It is unlawful for the employer to It is unlawful for the employer to deny or refuse any Firefighter the deny or refuse any Firefighter the rights and protections of this Act, rights and protections of this Act, and a Firefighter or association and a Firefighter or association may file a may file a lawsuit in superior lawsuit in superior court alleging violations of court alleging violations of this Actthis Act. .


Government Code § 3260Government Code § 3260Enforcement of this Act Enforcement of this Act [cont.] [cont.] The superior court can render The superior court can render injunctiveinjunctive

or other extraordinary relief to remedy or other extraordinary relief to remedy the violation(s) and to prevent future the violation(s) and to prevent future violations of a like or similar nature. This violations of a like or similar nature. This can include an injunction prohibiting the can include an injunction prohibiting the department from department from taking any punitive taking any punitive actionaction against the Firefighter.against the Firefighter.

Mounger v. GatesMounger v. Gates (1987) 193 Cal.App.3d 1248 – No exhaustion (1987) 193 Cal.App.3d 1248 – No exhaustion of administrative remedies is required. of administrative remedies is required.


Government Code § 3260Government Code § 3260Enforcement of this Act Enforcement of this Act [cont.] [cont.] If the court finds that a If the court finds that a departmentdepartment

maliciouslymaliciously violated any provision of violated any provision of the Act with the the Act with the intent to injureintent to injure the the firefighter, the department shall be liable firefighter, the department shall be liable for a for a civil penaltycivil penalty of up to of up to $25,000$25,000, for , for each violation, in addition to each violation, in addition to actual actual damagesdamages established, to be awarded to established, to be awarded to the firefighter whose right or protection the firefighter whose right or protection was denied and for was denied and for reasonable reasonable attorney's feesattorney's fees as may be determined as may be determined by the court. by the court.


Government Code § 3260Government Code § 3260Enforcement of this Act Enforcement of this Act [cont.] [cont.] A court can also issue sanctions A court can also issue sanctions

and award attorneys fees and and award attorneys fees and expenses against a party filing an expenses against a party filing an action under these sections, if it action under these sections, if it finds that the action was frivolous finds that the action was frivolous or brought in bad faith. or brought in bad faith.


Government Code § 3262. Government Code § 3262. Applicability Applicability

The rights and protections under the The rights and protections under the Firefighters Procedural Bill of Rights Firefighters Procedural Bill of Rights Act only apply to a firefighter during Act only apply to a firefighter during events and circumstances events and circumstances involving the performance of his involving the performance of his or her official dutiesor her official duties

Does this apply to acts only in the course and scope of Does this apply to acts only in the course and scope of employment? Would these rights and protections apply to, employment? Would these rights and protections apply to, for example, on-duty, non course and scope activities, like for example, on-duty, non course and scope activities, like sexual harassment?sexual harassment?

386058 a guide to the firefighters procedural bill of rights act prepared for cdf firefighters by:...

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