September 3, 2015
In an important decision for public safety employers, the California Supreme Court held in Poole v. Orange County Fire Authority that a firefighter did not have the right to respond to performance-related notes maintained by his supervisor before those notes became part of the employee’s permanent record.
The Firefighters Procedural Bill of Rights Act provides firefighters with the right to view and respond to any negative comments before they are entered into their personnel files. (Government Code § 3255.) This requirement was cited by firefighter Steve Poole, who objected to not being able to review the notes made by his supervisor at the Orange County Fire Authority (“OCFA”) over an 18-month period between 2008 and 2010.
The daily logs at issue were kept by Captain Brett Culp, Poole’s immediate supervisor, who regularly jotted down notes on the performances of firefighters. He later transcribed these notes to a flash drive and also kept the hard copy in file folders in his desk with the employees’ names on the file. The logs included “any factual occurrence or occurrences that would aid him in writing a thorough and fair annual review.”
In Poole’s case, the log included both positive and negative comments. The negative side included concerns about Poole’s performance when he was responsible for cleaning the fire station and several entries covering his actions at training sessions. Some of Culp’s notes, particularly the ones covering the training sessions, never made it into Poole’s job performance reviews or Poole’s permanent personnel files.
Culp discussed his concerns with others, including his own supervisor, OCFA Human Resources personnel and the department’s attorneys, but he did not share his daily log with these officials and did not allow employees, including Poole, to review the entries.
When Poole reviewed his performance evaluation, the level of documentation made him suspect that Culp had been maintaining a file on him. Upon request, Culp shared a copy of his log with Poole, and Poole complained to OCFA’s Director of Human Resources that the maintenance of negative comments in the daily log - without providing Poole an advance opportunity to review them - constituted a violation of Government Code section 3255.
Poole and the Orange County Professional Firefighters Association filed an action in Superior Court seeking declaratory and injunctive relief, damages, civil penalties, and a writ of mandate directing OCFA to comply with section 3255. The trial court ruled that if Culp made negative notes about Poole in his log, but did not address the problems in the annual employee evaluation, then those notes “(did) not exist, at least for practical purposes.” Culp’s notes were more like “post-it notes,” to be used as reminders, than any kind of permanent record.
However, the Fourth District Court of Appeal overturned the trial court and observed that Culp’s notes were kept in a file with the employee’s name on it and used internally for personnel matters. The Court of Appeal stated that it was “evident that the daily logs affected Poole’s job status” and were used to make personnel decisions.
In reversing the Court of Appeal, the California Supreme Court analyzed Government Code section 3255. The Court noted that statutes are not construed “in isolation,” but rather by reviewing every segment of the relevant law in a holistic way, to interpret them properly. The Court held that a supervisor’s log, written simply to support his or her memory, should not fall within the scope of an official personnel file for purposes of Section 3255 .
Additionally, the Court noted that Culp, in his role as Poole’s immediate supervisor, had no authority to take adverse disciplinary action against Poole, unless Culp’s comments found their way into Poole’s personnel file. The Court noted that there was “no evidence that Culp’s log would be available to anyone making personnel decisions in the future. The log was available only to Culp himself.” Importantly, the Court also noted that it was “undisputed that the documents Culp prepared with the assistance of the log – (Poole’s) performance evaluations and improvement plan – were disclosed to (Poole) before they were entered into his personnel file.”
This decision relieves frustrations felt by many public safety employers, including law enforcement agencies subject to the similar Public Safety Officers Procedural Bill of Rights Act, following the 2013 Court of Appeal decision. It is now settled that public safety supervisors may maintain logs and notes regarding employee performance/conduct issues. In considering whether to maintain “daily logs” and notes, public safety supervisors should keep the following points in mind:
• Supervisor logs and notes may be used to keep track of various occurrences (positive and negative);
• Supervisor logs and notes should not be shared with others; and,
• To the extent that information initially maintained in supervisor’s file results in a formalized adverse comment against a firefighter (e.g. disciplinary documentation, personnel evaluations, etc.), the firefighter must first be provided the opportunity to read and sign the documentation prior to inclusion in his or her personnel file.
If your agency needs any assistance in navigating the requirements of the Bill of Rights Acts or complying with this new decision, please contact one of our attorneys.