Tuesday, November 5, 2013
Court of Appeal Applies Firefighters’ Bill of Rights to Captain’s Notes
By a MetNews Staff Writer
A law requiring notice to firefighters before any adverse comments are entered into their personnel files applies to a supervisory captain’s handwritten and computerized notes that were kept separate from official personnel files, the Fourth District Court of Appeal ruled yesterday.
Div. Three made the ruling in what the author described as the first published appellate decision interpreting the Firefighters’ Procedural Bill of Rights, codified under Government Code § 3255.
The law states in part:
“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. . . .”
The suit was brought by Orange County firefighter Steve Poole against his employer, the Orange County Fire Authority. He claimed that he was unfairly evaluated by Fire Captain Brett Culp, who had been keeping daily notes on the performance of his subordinated. Culp said he maintained such files for use in preparing his annual evaluations that were required under a performance improvement plan.
Poole said he was given a “substandard” rating based on Culp’s notes, which were relayed to a battalion chief. After his evaluation, Poole contacted a representative with the Orange County Professional Firefighters Association who in turn demanded to see Poole’s personnel file at the station house.
An inspection of Poole’s file revealed a wide variety of notes where Culp felt that Poole needed in improvement in his job performance.
After learning of the notes, Poole made a written demand to the Orange County Fire Authority that all adverse comments about him in the station file be removed in accordance with his rights under § 3255. The fire authority refused, arguing that 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 not subject to the provisions of § 3255.
Poole and the Orange County Professional Firefighters Association sued for damages, injunctive relief and a writ of mandate forcing defendant to comply with § 3255.
A trial judge denied relief, concluding that Culp’s notes were not part of Poole’s personnel file and more akin to “Post-it notes” to help remind Culp of things to consider in preparing employee evaluations.
The Court of Appeal reversed in an opinion by Justice Eileen C. Moore, who wrote:
“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.”
Moore likened the Firefighters Procedural Bill of Rights to similar protections afforded police and educators in California which apply to various forms of employment memoranda that are found outside of an employee’s official personnel file.
The justice said it was “evident the daily logs affected Poole’s job status” and that daily logs kept in the fire station apart from his official personnel file were “used for personnel decisions,” even though the plaintiffs’ counsel admitted that if Culp had written the evaluation strictly from his memory, no lawsuit would have been warranted.
The case is Poole v. Orange County Fire Authority, G047691.
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