Tuesday, August 25, 2015
High Court Says Firefighter Cannot See Supervisor’s Log Book
Justices Reverse Court of Appeal, Take Narrower View of Bill of Rights Act
By KENNETH OFGANG, Staff Writer
A law requiring that a firefighter be given notice and a chance to respond before adverse comments are entered into his or her personnel files does not apply to a supervisor’s handwritten and computerized notes that were kept separate from official personnel files, the California Supreme Court ruled yesterday.
The justices unanimously reversed the Fourth District Court of Appeal, Div. Three, which said an Orange County firefighter was entitled to see and respond to adverse comments that he believed his captain had entered into a daily log book.
The opinion by Chief Justice Tani Cantil-Sakauye is apparently the first by the high court 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 firefighter Steve Poole against the Orange County Fire Authority. Poole claimed that he was unfairly evaluated by Fire Captain Brett Culp, who had been keeping daily notes on the performance of his subordinates.
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 rejected the demand, 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 union sued for damages, injunctive relief and a writ of mandate forcing defendant to comply with §3255.
Orange Superior Court Judge Geoffrey T. Glass 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, reasoning that because the notes concerned Poole’s job performance and were “kept in a file with his name on it [and] used for personnel purposes and were disclosed to superiors,” they were covered by the statute.
But Cantil-Sakauye said the trial judge was correct.
“We hold that here, because the log was not shared with or available to anyone other than the supervisor who wrote the log, it does not constitute a file ‘used for any personnel purposes by his or her employer’ and section 3255 does not apply,” she wrote.
The chief justice acknowledged that the court, in interpreting similar statutes applying to police and educators, granted access to some employment memoranda found outside of an employee’s official personnel file. But in those cases, she explained, “the document was either (1) maintained in such a manner that it would be available to those making personnel decisions in the future, or (2) was actually used by the employer in making a personnel decision, or both.”
Cantil-Sakauye distinguished Miller v. Chico Unified School Dist. (1979) 24 Cal.3d 703, where the court held that a school principal had the right to respond to “derogatory written material compiled and maintained by a school district even though the material has not been properly placed in his personnel file” after the material was used by the school board in its decision to transfer the principal to a lesser position.
Poole’s case was different, the chief justice said, because “Culp did not share his log with anyone; he merely discussed with others some of the incidents that he had observed and also recorded in his log, preliminary to completing plaintiff’s evaluations and performance improvement plan.”
“The statute plainly gives firefighters the right to review and file a written response to certain documents. Its language cannot be stretched to include a right to file a written response to verbal communications.”
Poole v. Orange County Fire Authority, 15 S.O.S. 4404, was argued in the Supreme Court by Richard A. Levine of Silver, Hadden, Silver & Levine for the petitioners; Jules S. Zeman of Dentons US for the fire authority; and Los Angeles Deputy City Attorney Blithe Smith Bock for the League of California Cities and California State Association of Counties as amici supporting the fire authority.
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