Court of Appeal Defines “Fire Chief’ Subject to Removal Under Firefighters Procedural Bill of Rights Act

03.28.2018

George Corley (“Corley”) had been a Division Chief with the San Bernardino County Fire Protection District (“District”) for six years when a new Fire Chief, Mark Hartwig (“Hartwig”), was appointed.  Chief Hartwig felt that Corley’s management style was incompatible with his own, and after only working with him for nine months, Hartwig terminated Corley’s employment with the District.  Hartwig’s stated reason for the termination was “incompatibility of management style.”  Corley subsequently filed a lawsuit against the District alleging age discrimination under the Fair Employment and Housing Act of the California Government Code.  A jury found for Corley, and awarded him monetary damages in the six figures.  The District appealed, claiming, among other things, that the trial court erred in denying its request to instruct the jury regarding Government Code Section 3254(c), a provision in the Firefighters Procedural Bill of Rights Act (“FBOR”).  The Fourth Appellate District of the California Court of Appeal found that the trial court did not err in refusing to instruct the jury regarding the provision.

Analysis
California Government Code Section 3254(c) states:

A fire chief shall not be removed by a public agency or appointing authority without providing that person with written notice, the reason or reasons for removal, and an opportunity for administrative appeal.

For purposes of this subdivision, the removal of a fire chief by a public agency or appointing authority, for the purpose or implementing the goals or polices, or both, of the public agency or appointing authority, or for reasons including, but not limited to, incompatibility of management styles or as a result of a change in administration, shall be sufficient to constitute ‘reason or reasons.’ (Emphasis added)

The District argued that the trial court should have instructed the jury on this provision because Corley’s termination was not based on age, but instead was justified under Section 3254(c).  Corley’s counsel objected to the jury instruction, claiming that it only applies to the “lead fire chief”[1] of a jurisdiction, and not a division chief, like Corley.  The Court of Appeal agreed.  In doing so, the court looked to the counterpart to the Firefighters Procedural Bill of Rights Act, the Public Safety Officers Procedural Bill of Rights Act (“POBRA”), which contains language similar to Section 3254(c) in Government Code Section 3304(c).  The court cited the case of Robinson v. City of Chowchilla (2011) 202 Cal.App.4^th 368, which reviewed the legislative history of POBRA, and specifically Section 3304(c), and found that it was enacted in response to instances where police chiefs had been subjected to political pressure. 

Further, the court specifically noted that the text of Section 3254(c) only refers to “‘a fire chief’ and does not refer to ‘deputy chiefs,’ ‘assistant chiefs,’ ‘division chiefs’ or the like.”  The court found that by providing no definition of the word “fire chief,” the legislature meant for it to only apply to the “‘job of the fire chief.”  While the District argued that the word “‘a’ is an indefinite article that signals a generic reference, and the word ‘the’ is a definite article that refers to a specific person”, the court was not persuaded.  Instead, the court found that the word “a” was intended to apply generically to all fire chiefs in the state, and not all “chiefs” within a Department or Fire District. 

Significance
By limiting the application of Section 3254(c) to only the fire chief and not all chiefs within an agency, the court settled a long-standing dispute as to whom the legislature intended to cover with this language.  By including reference to the POBRA, the same question has now been answered for both police and fire agencies. 

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[1] The term “fire chief” is not defined in the FBOR nor is the term “chief of police” defined in FBOR’s counterpart, the Public Safety Officers Procedural Bill of Rights Act. 

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