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Do You Know Your Firefighter's Bill of Rights?
The good news for you folks out there clicking on this discussion is that you didn't have to sit through an (8) eight-hour lecture, typing all of this down. Do you know what your rights are in cases where someone accuses you of doing something wrong? This information is intended for both rank and file firefighters as well as chief officer's / management; who have to deal with employee discipline issues. Both sides of the table have to play by specific rules. Miss one of them and things start to unravel... These laws are specific for the State of California but the intent of this information is applicable regardless of where you work. It's all about being fair...
I hope this information is helpful toward keeping us all on the same page. I did not bother to edit the notes, which were my raw, rough draft notes that I typed out as I listened to an attorney representing a firm who specifically represents firefighters.
Note:
This information was presented by Stuart D. Adams, Esq.
ADAMS, FERRONE & FERRONE
4333 Park Terrace Drive #200
Westlake Village, CA 91361
Toll Free: (866) 373-5900
sadams@adamsferrone.com
www.adamsferrone.com
• Firm specializes in public safety representation in the State of California.
• The rights that we have change how internal affairs / investigations are ran and how the investigation have to take place.
• Understanding what our rights are prevents getting stepped on.
• The results of failure to provide our rights can cause the investigation to be eliminated if they don’t follow the new rules and laws.
• Several different investigations can occur due to the nature of our job such as:
o Insubordination
o Getting into an accident
• The investigation SHALL… failure to comply with the “shall” can result in having certain things suppressed the defending attorney.
• If your rights are violated, you need to know what to do.
• As a BC, you can’t just walk in and ask what happened anymore.
• There is a common sense application to these new laws.
California Government Code §§3250-3262
Firefighters’ Procedural Bill of Rights (F.B.R.)
Purpose:
• Provide due process
• Fundamental fairness
• To maintain stable employer – employee relations
Attorney Observation / Comment: Santa Barbara County FD & Local 2046 have a pretty decent relationship.
F.B.R. / Last is First
(The very last section is the most significant component.)
§3262 The rights and protections described in this chapter shall only apply to a firefighter during events and circumstances involving the performance of his or her official duties.
• Important because this is where limits are identified. You need to understand and remember this, the first part.
Examples of Cases Represented by AF&F Attorney Stuart Adams:
• PC 2703.5 Domestic (spousal abuse – can arrest as long as they have reasonable suspicion even though the abused spouse may not want the arrest executed)
• CVC 23152 “Deuce” (drunk driving)
• Firecrackers in the oven.
• Dog Food in the chow.
• Assault with a deadly poodle (real case…)
These case examples are not part of “official duties” and would not be covered under the Firefighter Bill of Rights.
What’s Covered Under FFBOR?
• Rolling code, TC, on the job… covered.
• Sexual harassment? Covered? This is where there are going to be some fights…
EXAMPLE: If you’re accused of raping someone on duty, sex in the hoseroom. Denied, I didn’t do that… Are you covered? Gray area and the attorney will take the position that it would be covered.
If you are acting within your official scope of duty and sued, the county has to cover you. Indemnify you, hire outside counsel to defend you.
in·dem·ni·fy
Etymology: Latin indemnis unharmed, from in- + damnum damage
1 : to secure against hurt, loss, or damage
2 : to make compensation to for incurred hurt, loss, or damage
Gray Areas for the FFBOR: Anything other than MVA, TC, failure to wear PPE, not designating someone as a patient, etc.
Fight with your supervisor cause’ he’s banging your wife, is it covered? Unknown.
Should you give them their rights?
• More of a chance of getting in trouble if you don’t verses if you do.
• If you think of an actual problem, does it meet these parameters?
F.B.R.
§3251: Firefighter, Paramedic, and EMT
• Irrespective of Rank
• The teeth in this is going to court, getting an injunction, suppressing certain things, etc.
• These rights apply to At-Will employees.
Does Not Apply To:
• Inmate
• Public Safety Officer
(3300 Et Seq., which is a peace officer that is covered under peace officer bill of rights)
• Probationary Employees
( NO SENSE IN CONDUCTING AN INVESTIGATION BECAUSE THEY ARE NOT COVERED ANYWAY)
§3251 Punitive action defined very broadly and includes:
• Dismissal
• Demotion
• Suspension
• Reduction in salary
• Written reprimand
• Transfer for purposes of punishment (there is a difference between punishment verses re-assignment / management cannot hide behind this tactic)
• Not everything is listed for what you can be punished for.
• The laws defining punitive action are very broad.
• Example of cop not finding a shotgun shared.
§3252 Political Activities
• Firefighter cannot be prohibited from engaging in or coerced into engaging in, political activities
• Cannot be prohibited from seeking election to or serving as a member of the governing board of a school district in City/County/District other than where employed.
• Go ahead and follow the order verses getting tagged for insubordination dealing with the fallout later
• Attorney client privilege is absolutely iron clad.
• This is where you can refuse to answer a question.
• Avoid going outside of the spectrum of protection by not saying that your chief is an idiot or a board of supervisor member is an idiot, not a good idea.
§3253 Rights which must be afforded during interrogation:
• When a firefighter under investigation and subjected to interrogation by commanding officer or any other member designated by the employing department or licensing or certifying agency that could lead to punitive action.
• Captain’s and above have to be aware that firefighter’s have a bill of rights and there will be an attorney coming in to make sure that those rights were not violated.
• Pre-Text Comment: this is where cops have someone call and attempt to have someone incriminate themselves, this can get really crazy, lots of different angles, you must be aware, stop the train from coming at you or stop the locomotive…
• What happens if you are ordered to answer questions but you know that have rights, you need to get on the phone ASAP and get a rep. You need to state that you know that you are not being given your rights but look for the root to avoid insubordination just in case you are wrong.
• Backing up example, immediately notify your supervisor, implement protocols that protect the employees rights, photograph it, get a statement, document it, prior to asking what happened, you might have to formalize it. The more serious the penalty, the more you better back up and do things right.
• The employee can refuse to answer questions, stating that he has a bill of rights, which should trigger the Captain to move in a very specific way.
• It has been argued that the reports were the beginning of the disciplinary action(s).
• Forms have clearly led to disciplinary actions.
• You don’t have to make any statements unless you are ordered to do so. This includes making statements to the investigating police officer. This could be considered coercion.
§3253(a) The interrogation shall be conducted:
• At a reasonable hour;
• Preferably on duty, unless an imminent threat to the safety of the public requires otherwise;
• Interrogation during off-duty time firefighter shall be compensated in accordance with department procedures (O.T.);
• Compensation shall not be reduced for any work missed.
§3253(b) Firefighter shall be informed prior to the interrogation of:
• The rank, name, and command of the officer in charge of the interrogation;
• The interrogating officers, and all other persons to be present during the interrogation;
• All questions directed to the firefighter under interrogation shall be asked by and through no more than two interrogators at one time.
§3253(c) The Firefighter under investigation shall be informed of the nature of the investigation prior to any interrogation.
§3253(d) The interrogating session shall be for a reasonable period taking into consideration gravity and complexity of the issue being investigated. The person under interrogation shall be allowed to attend to his or her own personal physical necessities.
Background on Stuart’s Opposing Attorney: Richard Chrysler is a guy who we end up fighting against. This is where you may need to excuse yourself to go to the bathroom, and have your attorney meet you. Where this got tough was when they came back and were asked “what did you and your attorney talk about…” If you need to get out of an interview, going to the bathroom and make the needed phone call(s) to give you the time to get counsel.
§3253(e)(1) No offensive language or threat of punitive action;
• No promised of reward;
• [Spielbauer was the name of the case in Santa Clara County where the pubic defender refused to answer questions. Even after being ordered to answer questions, 5th amendments rights were not being safeguarded, absent the formal grant of immunity. Not VERBAL but in WRITING! Libarger case was also referenced in regard to being coerced into making a statement, and the right to remain silent. The public needs to know, get a statement, California Supreme Court still has this pending but the California Bill of Rights in-acted these changes.] 2nd biggest difference between the cops and firemen bill of rights:
• The employer shall provide to, and obtain from, an employee a formal grant of immunity from criminal prosecution, in writing, before the employee may be compelled to respond to incriminating questions in an interrogation. Subject to that grant of immunity, a firefighter refusing to respond to questions or submit to interrogations shall be informed that failure to answer questions directly related to the investigation or interrogation may result in punitive action.
• This ONLY involves allegations of criminal misconduct.
• And, ONLY involves allegations of criminal misconduct while performing your official duties.
• Example: Use of department cell phone can be considered embezzlement and misuse of department property. The department decides to investigate this but if they don’t give you something in writing, a grant of immunity, then you don’t have to answer any questions under the grant of immunity. The department can be stymied from doing anything.
• Good luck on the administration getting the grant of immunity. Plan on making a phone call to your attorney.
• Speeding Ticket: Cop “you know how fast you were going” you don’t have to answer this.
• Spielbauer has not been tested...
§3253(e)(2): No visits by the press or news media without express consent;
• No home address or photograph should be given to the press or news media without his or her express consent.
• NEVER CONSENT!!!
• You cannot control the press.
• Attorney will state that you cannot release the name of the engineer. The department cannot give out your name and address.
§3253(f) No statement made under duress, coercion, or threat of punitive action shall be admissible in any subsequent judicial proceeding, except:
• When department seeking civil service sanctions against firefighter, including disciplinary action brought under Section 19572.
• In civil action, including administration actions by that firefighter/representative arising out of a disciplinary action.
• This was taken from the Police Officer Bill of Rights
• You don’t want to give a statement unless you are ordered to so you are protected.
• DO NOT GIVE voluntary statements because it can be used against you by anyone.
• Give a statement under order, precludes you having this information being used against you civilly.
§3253(g) Interrogation of a firefighter may be recorded;
• Firefighter shall have access to the tape if any further proceedings are contemplated or prior to any further interrogation.
• Firefighter shall be entitled to copy of any notes made by a stenographer or to any reports or complaints made by investigators or other persons, except those which are required by law to be confidential;
• No notes or reports that are deemed to be confidential may be entered in the firefighter’s personnel file;
• Firefighter shall have the right to bring his or her own recording device and record any and all aspects of the interrogation.
• You cannot tape record in secret, can be considered a federal offense.
• You cannot tape record your fellow firefighters without specific permission.
• A second interview means that they think you were lying 99% of the time.
• This means that you need to listen carefully to the first tape! Looking for the problem or inconsistency.
• They don’t have to give you anything… some department do and other don’t.
• Where there is overwhelming evidence, usually giving the information honestly turns out to be the best course. Lies will get you fired / terminated for being dishonest.
• Try to play games it will bite your ass. Gamesmanship DOES NOT WORK!
• Let your rights be violated, then go for the injunction to make things right. The objections can be made later and the judge will note this.
§3253(h) If prior to or during the interrogation of a firefighter it is contemplated that her or she may charged with a criminal offense, he or she shall be immediately informed of his or her constitutional rights.
• This is Miranda related rights.
• Miranda only applies when you are under custody.
• Miranda only has to be read to us (citizens) when we are under custody (under arrest).
• Only applies when a commanding officer questions you when there is a possibility of criminal actions. They would need to issue a grant of release of liability prior to being charged.
§3253(i) Upon formal written statement of charges, or whenever an interrogation focuses on matters that may result in punitive action, that firefighter, at his or her request, shall have the rights to be represented by a representative (1. Right to be represented with benefit of knowledge and experience from your attorney.) of his or her choice who may be present at all times during the interrogation;
• Not a person subject to the same investigations
• The representative shall be not be required to disclose, nor be subject to any punitive action for refusing to disclose, any information received from the firefighter under investigation for non-criminal matters;
Subsection §3253(i) NOT applied to:
• Counseling, instruction, or informal verbal admonishment by, or other routine or unplanned contact with, a supervisor or any other firefighter;
• This is a common sense exception. You are walking down the hall and a Captain says how’s it going, you can’t ask for a Rep… Everyday stuff, woman says you dropped the F-Bomb out in the street and the Captain say’s knock that shit off… or your boots are duty, or your uniform is a mess, common stuff, or the SWAT Commander looking for someone, went to the log books, drove 4-miles to the range, he knew what he was doing, looking for something, a planned response planned within minutes, not meant for penalties that are not serious. As a supervisor, you have to ask, is this going toward a written reprimand.
§3253(j) No firefighter shall be loaned or temporarily reassigned to a location or duty assignment if a firefighter in his or her department would not normally be sent to that location or would not normally be given that duty assignment under similar circumstances.
• Does not preclude workers comp side of things.
• Guys taken off the job for an investigation, has to be moved somewhere where they would normally be assigned such as to the landfill, or designing a Bonsai garden… Cannot be sent to outer Siberia…
Note: All the above dealt with the interrogation component of the administrative investigation. Materials are collected and packaged for development.
Skelly Hearing: Pre-disciplinary meeting to determine whether or not you will be disciplined.
Public Employees Rights to Due Process: Skelly
• The California Supreme Court has determined that public employees have certain due process protections on the job.
• In a landmark case, the Skelly case, the Court ruled that public employees are entitled to a "pre-disciplinary hearing."
• This means that an employee must be given a written notice of proposed disciplinary action.
The notice must include:
• A statement of the nature of the proposed discipline
• The effective date of the proposed discipline
• The reasons for the discipline
• The specific policy or rule violated
• A statement advising the employee of the right to respond orally or in writing
The main purpose of the Skelly rule is to allow employees an opportunity to respond to the charges and to request a reduction or elimination of the discipline.
§3254(a) No punitive action, or denial of promotion, or threat because of the lawful exercise of the rights under F.B.R. or under any existing administrative grievance procedure or any grievance procedure;
• If you are a rep, you cannot be retaliated against for not providing information when asked by management.
• This gives you the ability to not only file a grievance but also something that protects you under both the grievance policy as well as the firefighter bill of rights.
• Grievance due to past practice is one way to fights this. Example of a guy who has continually been number one on a promotional list and was passed over was successfully fought for a Ventura County District Attorney that was passed over.
§3254(b) No punitive action, nor denial of promotion on grounds other than merit, shall be undertaken by any employing department or licensing / certifying agency against any firefighter who has successfully completed the probationary period that may be required by his or employing agency without providing the firefighter with an opportunity for administrative appeal.
• If a paramedic has his / her license revoked, this gives you the ability to repeal the action.
• Binding arbitration is the cleanest way because it takes some of the power away from the actual county or city administration.
§3254(c) No fire chief may be removed by a public agency, or appointing authority, without providing the chief with written notice and the reason or reasons therefore and an opportunity for administrative appeal.
• OK to remove Chief for:
o Implementing goal policies
o Incompatibility of management styles or
o A Change in administration
• No property interest created where one does not exist
§3254(d) No punitive action, nor denial of promotion on grounds other than merit, shall be undertaken if the investigation of the allegation is not completed within one year of the employing department’s / certifying agency’s discovery (after January 1, 2008);
• In the event that the employing department / licensing / certifying agency determines that discipline may be taken, it shall complete its investigation and notify the public safety officer of its proposed actions within that year.
• If it goes past one-year, they your clear of all issues.
• Let a sleeping dog lie… Let it Ride…
§3254(d) (Continued) Exceptions to 1 year limit:
• waver in writing tolled during period specified in waiver;
• criminal investigation or criminal prosecution pending
• multi-jurisdictional investigation reasonable extension to coordinate agencies;
• employee is incapacitated or otherwise unavailable;
• firefighter is named as a party defendant, delayed while civil action is pending;
• complainant is a criminal defendant, tolled during the period of criminal investigation and prosecution;
• workers’ compensation fraud by firefighter
§3254(e) Where a pre-disciplinary response or grievance procedure is required or utilized, the time for this response or procedure shall not be governed or limited by this chapter.
• Skelly does not have to take place within the one-year period.
§3254(f) If, after investigation and any pre-disciplinary response or procedure, the employing department/licensing/certifying agency decides to impose discipline, they shall notify the firefighter in writing of its decision to impose discipline, including the date that the discipline will be imposed, within 30 days of its decision, but not less than 48 hours before imposing the discipline.
• When did they make this decision.
• Not typically put into writing and difficult to determine.
§3254(g) An investigation may be reopened if both the following circumstances exist:
• Significant new evidence has been discovered that is likely to affect the outcome of the investigation, and:
• One of the following conditions exist:
a. The evidence could not reasonably have been discovered in the normal course of investigation without resorting to extraordinary measures by the agency.
b. The evidence resulted from the firefighter’s pre-disciplinary response or procedure.
Note: (This is where during the Skelly hearing that the firefighter opens’ his mouth and says something to reopen the investigation, reopening the investigation giving them something else to go on. The attorney does ALL the talking.)
§3254.5 An administrative appeal instituted by a firefighter under F.B.R. shall be conducted in conformance with rules and procedures adopted by the employing department / licensing / certifying agency in accordance with section 11500 et. seq. (Administrative Procedures Act)
§3255 No firefighter shall have any comment adverse to his interest entered in his personnel file, or any other file used for any personnel file, or any other file used for any personnel purposes by his employer, without the firefighter having first read and signed the instrument containing the adverse comment indicating he is aware of such comment, except that such entry may be made if after reading such instrument the firefighter refuses to sign it. Should a firefighter refuse to sign, that fact shall be noted on that document, and signed or initiated by such firefighter.
§3256 A firefighter shall have 30 days within which to file a written response to any adverse comment entered in his personnel file. Such written response shall be attached to, and shall accompany, the adverse comment.
• The practice of responding back to a reprimand opens up a huge can of worms, possibly opening up other issues.
• A written reprimand just dies after awhile. It’s better to keep you mouth shut with them thinking you’re an idiot rather than opening your mouth and confirming it.
• If you do write a reprisal letter, keep the emotions out of it but being as brief as possible.
• The employer cannot keep secret files that can be used against you.
§3256(a) Employer shall at reasonable times and at reasonable intervals, upon request of firefighter during normal business hours, with no loss of compensation be allowed to inspect personnel files that are used or have been used to determine that firefighter’s qualifications for employment, promotion, additional compensation, or termination or other disciplinary action.
§3256 (b) Employer shall make the file or copy thereof available within a reasonable period of time after a request therefore by the firefighter.
• This means that you can request a copy
§3256 (c) Material mistakenly or unlawfully placed in the file: request in writing, that the mistaken or unlawful portion be corrected or deleted. Describe material and reasons supporting those corrections or deletions. Such a request becomes part of the file.
§3256 (d) Within 30 calendar days or receipt or a request made pursuant to subdivision (c), the employer shall either grant the firefighter’s request or notify the officer [sic] of the decision to refuse to grant the request. If the employer refuses to grant the request, in whole or in part, the employer shall state in writing the reasons for refusing the request, and that written statement shall become part of the personnel file of the firefighter.
§3257(a) Lie Detector Test
• No disciplinary action can be taken for refusing to submit to a lie detector test.
• No comment / testimony entered anywhere in the investigator’s notes or anywhere else that the firefighter refused to take, or did not take, a lie detector test,
§3257 (b) “lie detector” means a polygraph, deceptograph, voice stress analyzer, psychological stress evaluator, or any other similar device, whether mechanical or electrical, that is used, or the results or which are used, for the purpose of rendering a diagnostic opinion regarding the honest or dishonesty of an individual.
• Note: lie detector tests are not admissible, the science is so bad that it’s neither accepted nor admissible in court.
• Don’t let the intimidation factor be a consideration.
§3258 No firefighter shall be required or requested for purposes of an assignment or other personnel action to disclose any:
• item of his property
• income, assets, source of income
• debts or personal or domestic expenditures (including those of any member of his family or household) unless obtained or required under state law or court order.
§3259 Search or locker or storage space; consent; search warrant
No firefighter shall have his locker, or other space for storage that may be assigned to him searched except in his presence, or without his consent, or unless a valid search warrant has been obtained or where he has been notified that a search will be conducted. This section shall apply only to lockers or other space for storage that are owned or leased by the employing department or licensing / certifying agency.
• Don’t send anything via email that you would not want to be shown in court.
• You don’t want a lawyer arguing that it is or is not storage space… Use your own laptop not the departments…
§3260 Remedies for violation (What do we do about this?)
• Unlawful for employing department licensing / certifying agency to violate F.B.R.
• The superior court shall have initial jurisdiction
§3260 (c)(1) Appropriating injunctive or other extraordinary relief to remedy the violation and to prevent future violations of a like or similar nature, including, but not limited to, the granting of a temporary restraining order, preliminary, or permanent injunction, prohibiting the employing department / licensing / certifying agency from taking any punitive action against the firefighter.
• This enables the attorney to scrub all the issues or reported violations if the Firefighter Bill of Rights are screwed with.
• This is the hammer. If your rights are violated
§3260 (2) Bad faith or frivolous action under this section, the court may order sanctions.
• Employer maliciously violates any provision with the intent to injure the firefighter, employer shall be liable for:
• a civil penalty not to exceed twenty-five thousand dollars ($(25,000) per violation.
• and for reasonable attorney’s
• actual damages (failure to get job, loss of income from not being promoted)
• Not liable to indemnify contractor WITH “HOLD HARMLESS” AGREEMENT IN THE CONTRACT. (this is more of an administrative issue)
• Individuals are not liable but instead the department
§3261 Mutual aid agreements; effect of chapter upon
Nothing in this chapter shall in any way be construed to limit the use of any employing department / certifying agency or any firefighter to fulfill mutual aid agreements with other jurisdictions or agencies, and this chapter shall not be construed in any way to limit any jurisdictional or interagency cooperation under any circumstances where such activity is deemed necessary or desirable by the jurisdictions or the agencies.
CONCLUSION:
This information and rights brings everything in sharper focus as you are acting in your official capacity.
You can negotiate this information as to what is or is not official capacity.
Make sure all investigations are treated the same.
This is going to be changed as laws are challenged.
There will be growing pains, stumbling blocks.
When in doubt, call your attorney!
SPECIAL BULLETIN
October 16, 2007
Governor Signs AB 220: Firefighters Procedural Bill of Rights Act
On October 13, 2007, Governor Arnold Schwarzenegger signed into law the Firefighters
Procedural Bill of Rights Act ("FBOR" or "Act"), Assembly Bill 220. Modeled after the Public Safety Officers Procedural Bill of Rights Act ("POBR"), the Act provides firefighters with rights beyond those of non- safety public employees. The Act, found at Government Code sections 3250 through 3262, becomes effective on January 1, 2008. The Act will have a significant impact on the management of fire personnel. The following is a synopsis of some of the Act's most significant provisions:
Employees Who are Covered
The Act covers all firefighters, including firefighters who are paramedic or emergency medical technician. The definition of "firefighter" does not include inmates who perform firefighting duties or peace officers. (Gov. Code, § 3251, subd. (a)).
Disciplinary Investigations
Prior to any interrogation that could lead to "punitive action,” defined as "any action that may lead to dismissal, demotion, suspension, reduction in salary, written reprimand, or transfer for purposes of punishment," an agency must inform the firefighter of the nature of the investigation, the rank, name, and command of the officer in charge of the interrogation, the interrogating officer, and all other persons to be present during the interrogation. Moreover,
no more than two interrogators may question the firefighter at one time.
(Gov. Code, § 3253, subds. (b) and (c).) If, prior to or during the interrogation, it is contemplated that the firefighter may be charged with a criminal offense, the firefighter must be immediately informed of his or her constitutional
rights. (Gov. Code, § 3253, subd. (h)). An agency must provide the firefighter with a written, formal grant of immunity from criminal prosecution before compelling the employee to respond to incriminating questions during an interrogation. Subject to that grant of immunity, the firefighter refusing to respond to questions or submit
to interrogation shall be informed that the failure to answer questions may result in punitive action.
(Gov. Code, § , subd.(e)(1)). Both the agency and the firefighter have the right to record the interrogation. If any further proceedings are contemplated or prior to any further interrogation at a subsequent time, the firefighter
may access the agency's recording of the interrogation. The firefighter also has a right to a copy of any stenographer notes or any reports or complaints, except those, which are confidential by law.
(Gov. Code, § 3253, subd. (g)). A firefighter has the right to have a representative of his or her choice present during an interrogation. (Gov. Code, § 3253, subd. (i)). An agency cannot require a firefighter to submit to a lie detector test. (Gov. Code, § 3257). An agency may not search a firefighter's locker or other storage space without a search warrant, the firefighter's presence, consent, or prior notification.
(Gov. Code, § 3259). Imposition of Discipline and Appeal Rights Subject to limited exceptions, a disciplinary investigation must be completed, and a firefighter must be notified of proposed discipline within one year of the agency's discovery of alleged misconduct.
(Gov. Code, § 3254, subd. (d)).
If, after investigation and any pre-disciplinary response or procedure, an agency decides to impose discipline, the agency must inform the firefighter in writing of its decision within 30 days of its decision, but not less than 48 hours prior to imposing the discipline.
(Gov. Code, § 3254, subd. (f)). Anon-probationary firefighter cannot be subjected to punitive action or denial of promotion without an opportunity for administrative appeal. (Gov. Code, § 3254, subd. (b)). The employer's appeal
procedure must comply with the rules and procedures set forth in Government Code section 11500, et seq..
(Gov. Code, § 3254.5). Prior to removing a fire chief, the agency must provide a chief with written notice, the reason(s) for removal, and an opportunity for administrative appeal.
(Gov. Code, § 3254(c)). Personnel Files No adverse comment may be entered into a firefighter's personnel file, or any other file used for any personnel purposes, without the firefighter having first read and signed the instrument. The firefighter has 30 days to prepare a written response to any adverse comment entered in his or her personnel file.
(Gov. Code, §§ 3255 and 3256). Upon request, a firefighter has the right to inspect his or her personnel file(s) during usual business hours and when the firefighter is on paid status. If the firefighter believes there is material in the personnel file that is mistaken or unlawful, the firefighter may submit a request to correct or delete the disputed material. The agency has 30 days to respond to the request.
(Gov. Code, §§ 3256.5). Political Activity No firefighter may be prohibited from engaging in, or be coerced or required to, engage, in political activity, except when on duty or in uniform.
(Gov. Code, § 3252(a)). No firefighter may be prohibited seeking election to or serving as a member of a governing board of a school or local agency in which the firefighter is not employed.
(Gov. Code, § 3252(b)). Disclosure of Personal Financial Information Generally, an agency may not require a firefighter to disclose personal financial information for the purposes of a job assignment or other personnel action unless required under state law or pursuant to a court order.
(Gov. Code, § 3258). Remedies for Violations of the Act Initial jurisdiction for alleged FBOR violations reside in the superior court. If an agency violates a firefighter's rights under the Act, an agency can be subject to injunction, penalties (up to $25,000 for each malicious violation), and actual damages, if any. An individual cannot be liable for
the same act as the agency.
(Gov. Code, § 3260). A firefighter and/or his or her counsel may be subjected to monetary sanctions and may have to pay a fire department's attorney's fees if a firefighter brings a FBOR action which is in bad faith or frivolous.
(Gov. Code, § 3260(c)(2)). Since there is no case law yet interpreting the FBOR, courts will almost certainly follow POBR case law in interpreting and applying the Act's provisions.
California Fire News / Friday, October 19, 2007
Landmark Firefighters Procedural Bill of Rights Signed by Governor Schwarzenegger
Firefighters Procedural Bill of Rights signed
It's taken two decades and untold buckets of blood, sweat and tears. But come January 1, the Firefighters Procedural Bill of Rights will be the law in California.
With broad support from both political parties and a signature from Governor Arnold Schwarzenegger, Assembly Bill 220 by Assemblywoman Karen Bass (D-Los Angeles) extends to firefighters the same fundamental on-the-job employee protections that now exist for police officers.
"In the public's mind, public safety professionals are on the same team," said California Professional Firefighters President Lou Paulson. "We face the same split-second decisions the same high-stress situations the same danger to life and limb. In signing this measure, Governor Schwarzenegger is recognizing that all first responders should be on an equal footing when it comes to protecting our due-process rights."
AB 220 is the culmination of a 20-year crusade by California Professional Firefighters to secure a consistent procedural standard for all first responders - police, firefighters and public agency EMS personnel - when they are the targets of investigation or interrogation by their superiors.
The landmark measure is designed to apply common-sense principles of fairness and professionalism to the process of investigating and disciplining first responders. As with the original Peace Officers Bill of Rights approved in the 1980s, AB 220 puts in place basic procedural safeguards that recognize the unique role of first responders:
No more unreasonable interrogation. The law requires that interrogation be conducted at reasonable hours, with compensation and without verbal or physical threats or extortion;
Protection of basic rights. Individuals must be advised of their rights and secures the right of representation in any and all interrogations; prohibits unwarranted search of personal property or forced submission to polygraph testing;
Maintaining professionalism. Authorizes recording any interrogation by employer or employee, and gives each access to the other's recordings and transcripts; statements made under duress can't be used in judicial proceedings;
Preserving appeal rights. Chief must provide written notice of removal or action and provide administrative appeal; appeals process must conform to state Administrative Procedures Act.
During the two-decade struggle, CPF has introduced a half-dozen different measures to enact these basic protections. Almost all fell victim to legislative partisanship or simple misinformation from employers.
This year, however, the measure enjoyed overwhelming support from both political parties, including near-unanimous support in the California Assembly. In addition to Schwarzenegger, the measure's champions included Assemblywoman Bass, Assembly Speaker Fabian Nunez, Senate President Don Perata and Assembly GOP Leader Mike Villines.
Also standing tall in this battle was GOP Assemblyman Todd Spitzer, who helped win converts from his own party during the legislative battle.
"California's firefighters are, and should be, held to the highest standards of public service," said Paulson. "We welcome these high standards, but they must be applied fairly. This measure establishes that standard of basic fairness, and we are grateful to the governor and the Legislature for their support."
I hope this information is helpful toward keeping us all on the same page. I did not bother to edit the notes, which were my raw, rough draft notes that I typed out as I listened to an attorney representing a firm who specifically represents firefighters.
Note:
This information was presented by Stuart D. Adams, Esq.
ADAMS, FERRONE & FERRONE
4333 Park Terrace Drive #200
Westlake Village, CA 91361
Toll Free: (866) 373-5900
sadams@adamsferrone.com
www.adamsferrone.com
• Firm specializes in public safety representation in the State of California.
• The rights that we have change how internal affairs / investigations are ran and how the investigation have to take place.
• Understanding what our rights are prevents getting stepped on.
• The results of failure to provide our rights can cause the investigation to be eliminated if they don’t follow the new rules and laws.
• Several different investigations can occur due to the nature of our job such as:
o Insubordination
o Getting into an accident
• The investigation SHALL… failure to comply with the “shall” can result in having certain things suppressed the defending attorney.
• If your rights are violated, you need to know what to do.
• As a BC, you can’t just walk in and ask what happened anymore.
• There is a common sense application to these new laws.
California Government Code §§3250-3262
Firefighters’ Procedural Bill of Rights (F.B.R.)
Purpose:
• Provide due process
• Fundamental fairness
• To maintain stable employer – employee relations
Attorney Observation / Comment: Santa Barbara County FD & Local 2046 have a pretty decent relationship.
F.B.R. / Last is First
(The very last section is the most significant component.)
§3262 The rights and protections described in this chapter shall only apply to a firefighter during events and circumstances involving the performance of his or her official duties.
• Important because this is where limits are identified. You need to understand and remember this, the first part.
Examples of Cases Represented by AF&F Attorney Stuart Adams:
• PC 2703.5 Domestic (spousal abuse – can arrest as long as they have reasonable suspicion even though the abused spouse may not want the arrest executed)
• CVC 23152 “Deuce” (drunk driving)
• Firecrackers in the oven.
• Dog Food in the chow.
• Assault with a deadly poodle (real case…)
These case examples are not part of “official duties” and would not be covered under the Firefighter Bill of Rights.
What’s Covered Under FFBOR?
• Rolling code, TC, on the job… covered.
• Sexual harassment? Covered? This is where there are going to be some fights…
EXAMPLE: If you’re accused of raping someone on duty, sex in the hoseroom. Denied, I didn’t do that… Are you covered? Gray area and the attorney will take the position that it would be covered.
If you are acting within your official scope of duty and sued, the county has to cover you. Indemnify you, hire outside counsel to defend you.
in·dem·ni·fy
Etymology: Latin indemnis unharmed, from in- + damnum damage
1 : to secure against hurt, loss, or damage
2 : to make compensation to for incurred hurt, loss, or damage
Gray Areas for the FFBOR: Anything other than MVA, TC, failure to wear PPE, not designating someone as a patient, etc.
Fight with your supervisor cause’ he’s banging your wife, is it covered? Unknown.
Should you give them their rights?
• More of a chance of getting in trouble if you don’t verses if you do.
• If you think of an actual problem, does it meet these parameters?
F.B.R.
§3251: Firefighter, Paramedic, and EMT
• Irrespective of Rank
• The teeth in this is going to court, getting an injunction, suppressing certain things, etc.
• These rights apply to At-Will employees.
Does Not Apply To:
• Inmate
• Public Safety Officer
(3300 Et Seq., which is a peace officer that is covered under peace officer bill of rights)
• Probationary Employees
( NO SENSE IN CONDUCTING AN INVESTIGATION BECAUSE THEY ARE NOT COVERED ANYWAY)
§3251 Punitive action defined very broadly and includes:
• Dismissal
• Demotion
• Suspension
• Reduction in salary
• Written reprimand
• Transfer for purposes of punishment (there is a difference between punishment verses re-assignment / management cannot hide behind this tactic)
• Not everything is listed for what you can be punished for.
• The laws defining punitive action are very broad.
• Example of cop not finding a shotgun shared.
§3252 Political Activities
• Firefighter cannot be prohibited from engaging in or coerced into engaging in, political activities
• Cannot be prohibited from seeking election to or serving as a member of the governing board of a school district in City/County/District other than where employed.
• Go ahead and follow the order verses getting tagged for insubordination dealing with the fallout later
• Attorney client privilege is absolutely iron clad.
• This is where you can refuse to answer a question.
• Avoid going outside of the spectrum of protection by not saying that your chief is an idiot or a board of supervisor member is an idiot, not a good idea.
§3253 Rights which must be afforded during interrogation:
• When a firefighter under investigation and subjected to interrogation by commanding officer or any other member designated by the employing department or licensing or certifying agency that could lead to punitive action.
• Captain’s and above have to be aware that firefighter’s have a bill of rights and there will be an attorney coming in to make sure that those rights were not violated.
• Pre-Text Comment: this is where cops have someone call and attempt to have someone incriminate themselves, this can get really crazy, lots of different angles, you must be aware, stop the train from coming at you or stop the locomotive…
• What happens if you are ordered to answer questions but you know that have rights, you need to get on the phone ASAP and get a rep. You need to state that you know that you are not being given your rights but look for the root to avoid insubordination just in case you are wrong.
• Backing up example, immediately notify your supervisor, implement protocols that protect the employees rights, photograph it, get a statement, document it, prior to asking what happened, you might have to formalize it. The more serious the penalty, the more you better back up and do things right.
• The employee can refuse to answer questions, stating that he has a bill of rights, which should trigger the Captain to move in a very specific way.
• It has been argued that the reports were the beginning of the disciplinary action(s).
• Forms have clearly led to disciplinary actions.
• You don’t have to make any statements unless you are ordered to do so. This includes making statements to the investigating police officer. This could be considered coercion.
§3253(a) The interrogation shall be conducted:
• At a reasonable hour;
• Preferably on duty, unless an imminent threat to the safety of the public requires otherwise;
• Interrogation during off-duty time firefighter shall be compensated in accordance with department procedures (O.T.);
• Compensation shall not be reduced for any work missed.
§3253(b) Firefighter shall be informed prior to the interrogation of:
• The rank, name, and command of the officer in charge of the interrogation;
• The interrogating officers, and all other persons to be present during the interrogation;
• All questions directed to the firefighter under interrogation shall be asked by and through no more than two interrogators at one time.
§3253(c) The Firefighter under investigation shall be informed of the nature of the investigation prior to any interrogation.
§3253(d) The interrogating session shall be for a reasonable period taking into consideration gravity and complexity of the issue being investigated. The person under interrogation shall be allowed to attend to his or her own personal physical necessities.
Background on Stuart’s Opposing Attorney: Richard Chrysler is a guy who we end up fighting against. This is where you may need to excuse yourself to go to the bathroom, and have your attorney meet you. Where this got tough was when they came back and were asked “what did you and your attorney talk about…” If you need to get out of an interview, going to the bathroom and make the needed phone call(s) to give you the time to get counsel.
§3253(e)(1) No offensive language or threat of punitive action;
• No promised of reward;
• [Spielbauer was the name of the case in Santa Clara County where the pubic defender refused to answer questions. Even after being ordered to answer questions, 5th amendments rights were not being safeguarded, absent the formal grant of immunity. Not VERBAL but in WRITING! Libarger case was also referenced in regard to being coerced into making a statement, and the right to remain silent. The public needs to know, get a statement, California Supreme Court still has this pending but the California Bill of Rights in-acted these changes.] 2nd biggest difference between the cops and firemen bill of rights:
• The employer shall provide to, and obtain from, an employee a formal grant of immunity from criminal prosecution, in writing, before the employee may be compelled to respond to incriminating questions in an interrogation. Subject to that grant of immunity, a firefighter refusing to respond to questions or submit to interrogations shall be informed that failure to answer questions directly related to the investigation or interrogation may result in punitive action.
• This ONLY involves allegations of criminal misconduct.
• And, ONLY involves allegations of criminal misconduct while performing your official duties.
• Example: Use of department cell phone can be considered embezzlement and misuse of department property. The department decides to investigate this but if they don’t give you something in writing, a grant of immunity, then you don’t have to answer any questions under the grant of immunity. The department can be stymied from doing anything.
• Good luck on the administration getting the grant of immunity. Plan on making a phone call to your attorney.
• Speeding Ticket: Cop “you know how fast you were going” you don’t have to answer this.
• Spielbauer has not been tested...
§3253(e)(2): No visits by the press or news media without express consent;
• No home address or photograph should be given to the press or news media without his or her express consent.
• NEVER CONSENT!!!
• You cannot control the press.
• Attorney will state that you cannot release the name of the engineer. The department cannot give out your name and address.
§3253(f) No statement made under duress, coercion, or threat of punitive action shall be admissible in any subsequent judicial proceeding, except:
• When department seeking civil service sanctions against firefighter, including disciplinary action brought under Section 19572.
• In civil action, including administration actions by that firefighter/representative arising out of a disciplinary action.
• This was taken from the Police Officer Bill of Rights
• You don’t want to give a statement unless you are ordered to so you are protected.
• DO NOT GIVE voluntary statements because it can be used against you by anyone.
• Give a statement under order, precludes you having this information being used against you civilly.
§3253(g) Interrogation of a firefighter may be recorded;
• Firefighter shall have access to the tape if any further proceedings are contemplated or prior to any further interrogation.
• Firefighter shall be entitled to copy of any notes made by a stenographer or to any reports or complaints made by investigators or other persons, except those which are required by law to be confidential;
• No notes or reports that are deemed to be confidential may be entered in the firefighter’s personnel file;
• Firefighter shall have the right to bring his or her own recording device and record any and all aspects of the interrogation.
• You cannot tape record in secret, can be considered a federal offense.
• You cannot tape record your fellow firefighters without specific permission.
• A second interview means that they think you were lying 99% of the time.
• This means that you need to listen carefully to the first tape! Looking for the problem or inconsistency.
• They don’t have to give you anything… some department do and other don’t.
• Where there is overwhelming evidence, usually giving the information honestly turns out to be the best course. Lies will get you fired / terminated for being dishonest.
• Try to play games it will bite your ass. Gamesmanship DOES NOT WORK!
• Let your rights be violated, then go for the injunction to make things right. The objections can be made later and the judge will note this.
§3253(h) If prior to or during the interrogation of a firefighter it is contemplated that her or she may charged with a criminal offense, he or she shall be immediately informed of his or her constitutional rights.
• This is Miranda related rights.
• Miranda only applies when you are under custody.
• Miranda only has to be read to us (citizens) when we are under custody (under arrest).
• Only applies when a commanding officer questions you when there is a possibility of criminal actions. They would need to issue a grant of release of liability prior to being charged.
§3253(i) Upon formal written statement of charges, or whenever an interrogation focuses on matters that may result in punitive action, that firefighter, at his or her request, shall have the rights to be represented by a representative (1. Right to be represented with benefit of knowledge and experience from your attorney.) of his or her choice who may be present at all times during the interrogation;
• Not a person subject to the same investigations
• The representative shall be not be required to disclose, nor be subject to any punitive action for refusing to disclose, any information received from the firefighter under investigation for non-criminal matters;
Subsection §3253(i) NOT applied to:
• Counseling, instruction, or informal verbal admonishment by, or other routine or unplanned contact with, a supervisor or any other firefighter;
• This is a common sense exception. You are walking down the hall and a Captain says how’s it going, you can’t ask for a Rep… Everyday stuff, woman says you dropped the F-Bomb out in the street and the Captain say’s knock that shit off… or your boots are duty, or your uniform is a mess, common stuff, or the SWAT Commander looking for someone, went to the log books, drove 4-miles to the range, he knew what he was doing, looking for something, a planned response planned within minutes, not meant for penalties that are not serious. As a supervisor, you have to ask, is this going toward a written reprimand.
§3253(j) No firefighter shall be loaned or temporarily reassigned to a location or duty assignment if a firefighter in his or her department would not normally be sent to that location or would not normally be given that duty assignment under similar circumstances.
• Does not preclude workers comp side of things.
• Guys taken off the job for an investigation, has to be moved somewhere where they would normally be assigned such as to the landfill, or designing a Bonsai garden… Cannot be sent to outer Siberia…
Note: All the above dealt with the interrogation component of the administrative investigation. Materials are collected and packaged for development.
Skelly Hearing: Pre-disciplinary meeting to determine whether or not you will be disciplined.
Public Employees Rights to Due Process: Skelly
• The California Supreme Court has determined that public employees have certain due process protections on the job.
• In a landmark case, the Skelly case, the Court ruled that public employees are entitled to a "pre-disciplinary hearing."
• This means that an employee must be given a written notice of proposed disciplinary action.
The notice must include:
• A statement of the nature of the proposed discipline
• The effective date of the proposed discipline
• The reasons for the discipline
• The specific policy or rule violated
• A statement advising the employee of the right to respond orally or in writing
The main purpose of the Skelly rule is to allow employees an opportunity to respond to the charges and to request a reduction or elimination of the discipline.
§3254(a) No punitive action, or denial of promotion, or threat because of the lawful exercise of the rights under F.B.R. or under any existing administrative grievance procedure or any grievance procedure;
• If you are a rep, you cannot be retaliated against for not providing information when asked by management.
• This gives you the ability to not only file a grievance but also something that protects you under both the grievance policy as well as the firefighter bill of rights.
• Grievance due to past practice is one way to fights this. Example of a guy who has continually been number one on a promotional list and was passed over was successfully fought for a Ventura County District Attorney that was passed over.
§3254(b) No punitive action, nor denial of promotion on grounds other than merit, shall be undertaken by any employing department or licensing / certifying agency against any firefighter who has successfully completed the probationary period that may be required by his or employing agency without providing the firefighter with an opportunity for administrative appeal.
• If a paramedic has his / her license revoked, this gives you the ability to repeal the action.
• Binding arbitration is the cleanest way because it takes some of the power away from the actual county or city administration.
§3254(c) No fire chief may be removed by a public agency, or appointing authority, without providing the chief with written notice and the reason or reasons therefore and an opportunity for administrative appeal.
• OK to remove Chief for:
o Implementing goal policies
o Incompatibility of management styles or
o A Change in administration
• No property interest created where one does not exist
§3254(d) No punitive action, nor denial of promotion on grounds other than merit, shall be undertaken if the investigation of the allegation is not completed within one year of the employing department’s / certifying agency’s discovery (after January 1, 2008);
• In the event that the employing department / licensing / certifying agency determines that discipline may be taken, it shall complete its investigation and notify the public safety officer of its proposed actions within that year.
• If it goes past one-year, they your clear of all issues.
• Let a sleeping dog lie… Let it Ride…
§3254(d) (Continued) Exceptions to 1 year limit:
• waver in writing tolled during period specified in waiver;
• criminal investigation or criminal prosecution pending
• multi-jurisdictional investigation reasonable extension to coordinate agencies;
• employee is incapacitated or otherwise unavailable;
• firefighter is named as a party defendant, delayed while civil action is pending;
• complainant is a criminal defendant, tolled during the period of criminal investigation and prosecution;
• workers’ compensation fraud by firefighter
§3254(e) Where a pre-disciplinary response or grievance procedure is required or utilized, the time for this response or procedure shall not be governed or limited by this chapter.
• Skelly does not have to take place within the one-year period.
§3254(f) If, after investigation and any pre-disciplinary response or procedure, the employing department/licensing/certifying agency decides to impose discipline, they shall notify the firefighter in writing of its decision to impose discipline, including the date that the discipline will be imposed, within 30 days of its decision, but not less than 48 hours before imposing the discipline.
• When did they make this decision.
• Not typically put into writing and difficult to determine.
§3254(g) An investigation may be reopened if both the following circumstances exist:
• Significant new evidence has been discovered that is likely to affect the outcome of the investigation, and:
• One of the following conditions exist:
a. The evidence could not reasonably have been discovered in the normal course of investigation without resorting to extraordinary measures by the agency.
b. The evidence resulted from the firefighter’s pre-disciplinary response or procedure.
Note: (This is where during the Skelly hearing that the firefighter opens’ his mouth and says something to reopen the investigation, reopening the investigation giving them something else to go on. The attorney does ALL the talking.)
§3254.5 An administrative appeal instituted by a firefighter under F.B.R. shall be conducted in conformance with rules and procedures adopted by the employing department / licensing / certifying agency in accordance with section 11500 et. seq. (Administrative Procedures Act)
§3255 No firefighter shall have any comment adverse to his interest entered in his personnel file, or any other file used for any personnel file, or any other file used for any personnel purposes by his employer, without the firefighter having first read and signed the instrument containing the adverse comment indicating he is aware of such comment, except that such entry may be made if after reading such instrument the firefighter refuses to sign it. Should a firefighter refuse to sign, that fact shall be noted on that document, and signed or initiated by such firefighter.
§3256 A firefighter shall have 30 days within which to file a written response to any adverse comment entered in his personnel file. Such written response shall be attached to, and shall accompany, the adverse comment.
• The practice of responding back to a reprimand opens up a huge can of worms, possibly opening up other issues.
• A written reprimand just dies after awhile. It’s better to keep you mouth shut with them thinking you’re an idiot rather than opening your mouth and confirming it.
• If you do write a reprisal letter, keep the emotions out of it but being as brief as possible.
• The employer cannot keep secret files that can be used against you.
§3256(a) Employer shall at reasonable times and at reasonable intervals, upon request of firefighter during normal business hours, with no loss of compensation be allowed to inspect personnel files that are used or have been used to determine that firefighter’s qualifications for employment, promotion, additional compensation, or termination or other disciplinary action.
§3256 (b) Employer shall make the file or copy thereof available within a reasonable period of time after a request therefore by the firefighter.
• This means that you can request a copy
§3256 (c) Material mistakenly or unlawfully placed in the file: request in writing, that the mistaken or unlawful portion be corrected or deleted. Describe material and reasons supporting those corrections or deletions. Such a request becomes part of the file.
§3256 (d) Within 30 calendar days or receipt or a request made pursuant to subdivision (c), the employer shall either grant the firefighter’s request or notify the officer [sic] of the decision to refuse to grant the request. If the employer refuses to grant the request, in whole or in part, the employer shall state in writing the reasons for refusing the request, and that written statement shall become part of the personnel file of the firefighter.
§3257(a) Lie Detector Test
• No disciplinary action can be taken for refusing to submit to a lie detector test.
• No comment / testimony entered anywhere in the investigator’s notes or anywhere else that the firefighter refused to take, or did not take, a lie detector test,
§3257 (b) “lie detector” means a polygraph, deceptograph, voice stress analyzer, psychological stress evaluator, or any other similar device, whether mechanical or electrical, that is used, or the results or which are used, for the purpose of rendering a diagnostic opinion regarding the honest or dishonesty of an individual.
• Note: lie detector tests are not admissible, the science is so bad that it’s neither accepted nor admissible in court.
• Don’t let the intimidation factor be a consideration.
§3258 No firefighter shall be required or requested for purposes of an assignment or other personnel action to disclose any:
• item of his property
• income, assets, source of income
• debts or personal or domestic expenditures (including those of any member of his family or household) unless obtained or required under state law or court order.
§3259 Search or locker or storage space; consent; search warrant
No firefighter shall have his locker, or other space for storage that may be assigned to him searched except in his presence, or without his consent, or unless a valid search warrant has been obtained or where he has been notified that a search will be conducted. This section shall apply only to lockers or other space for storage that are owned or leased by the employing department or licensing / certifying agency.
• Don’t send anything via email that you would not want to be shown in court.
• You don’t want a lawyer arguing that it is or is not storage space… Use your own laptop not the departments…
§3260 Remedies for violation (What do we do about this?)
• Unlawful for employing department licensing / certifying agency to violate F.B.R.
• The superior court shall have initial jurisdiction
§3260 (c)(1) Appropriating injunctive or other extraordinary relief to remedy the violation and to prevent future violations of a like or similar nature, including, but not limited to, the granting of a temporary restraining order, preliminary, or permanent injunction, prohibiting the employing department / licensing / certifying agency from taking any punitive action against the firefighter.
• This enables the attorney to scrub all the issues or reported violations if the Firefighter Bill of Rights are screwed with.
• This is the hammer. If your rights are violated
§3260 (2) Bad faith or frivolous action under this section, the court may order sanctions.
• Employer maliciously violates any provision with the intent to injure the firefighter, employer shall be liable for:
• a civil penalty not to exceed twenty-five thousand dollars ($(25,000) per violation.
• and for reasonable attorney’s
• actual damages (failure to get job, loss of income from not being promoted)
• Not liable to indemnify contractor WITH “HOLD HARMLESS” AGREEMENT IN THE CONTRACT. (this is more of an administrative issue)
• Individuals are not liable but instead the department
§3261 Mutual aid agreements; effect of chapter upon
Nothing in this chapter shall in any way be construed to limit the use of any employing department / certifying agency or any firefighter to fulfill mutual aid agreements with other jurisdictions or agencies, and this chapter shall not be construed in any way to limit any jurisdictional or interagency cooperation under any circumstances where such activity is deemed necessary or desirable by the jurisdictions or the agencies.
CONCLUSION:
This information and rights brings everything in sharper focus as you are acting in your official capacity.
You can negotiate this information as to what is or is not official capacity.
Make sure all investigations are treated the same.
This is going to be changed as laws are challenged.
There will be growing pains, stumbling blocks.
When in doubt, call your attorney!
SPECIAL BULLETIN
October 16, 2007
Governor Signs AB 220: Firefighters Procedural Bill of Rights Act
On October 13, 2007, Governor Arnold Schwarzenegger signed into law the Firefighters
Procedural Bill of Rights Act ("FBOR" or "Act"), Assembly Bill 220. Modeled after the Public Safety Officers Procedural Bill of Rights Act ("POBR"), the Act provides firefighters with rights beyond those of non- safety public employees. The Act, found at Government Code sections 3250 through 3262, becomes effective on January 1, 2008. The Act will have a significant impact on the management of fire personnel. The following is a synopsis of some of the Act's most significant provisions:
Employees Who are Covered
The Act covers all firefighters, including firefighters who are paramedic or emergency medical technician. The definition of "firefighter" does not include inmates who perform firefighting duties or peace officers. (Gov. Code, § 3251, subd. (a)).
Disciplinary Investigations
Prior to any interrogation that could lead to "punitive action,” defined as "any action that may lead to dismissal, demotion, suspension, reduction in salary, written reprimand, or transfer for purposes of punishment," an agency must inform the firefighter of the nature of the investigation, the rank, name, and command of the officer in charge of the interrogation, the interrogating officer, and all other persons to be present during the interrogation. Moreover,
no more than two interrogators may question the firefighter at one time.
(Gov. Code, § 3253, subds. (b) and (c).) If, prior to or during the interrogation, it is contemplated that the firefighter may be charged with a criminal offense, the firefighter must be immediately informed of his or her constitutional
rights. (Gov. Code, § 3253, subd. (h)). An agency must provide the firefighter with a written, formal grant of immunity from criminal prosecution before compelling the employee to respond to incriminating questions during an interrogation. Subject to that grant of immunity, the firefighter refusing to respond to questions or submit
to interrogation shall be informed that the failure to answer questions may result in punitive action.
(Gov. Code, § , subd.(e)(1)). Both the agency and the firefighter have the right to record the interrogation. If any further proceedings are contemplated or prior to any further interrogation at a subsequent time, the firefighter
may access the agency's recording of the interrogation. The firefighter also has a right to a copy of any stenographer notes or any reports or complaints, except those, which are confidential by law.
(Gov. Code, § 3253, subd. (g)). A firefighter has the right to have a representative of his or her choice present during an interrogation. (Gov. Code, § 3253, subd. (i)). An agency cannot require a firefighter to submit to a lie detector test. (Gov. Code, § 3257). An agency may not search a firefighter's locker or other storage space without a search warrant, the firefighter's presence, consent, or prior notification.
(Gov. Code, § 3259). Imposition of Discipline and Appeal Rights Subject to limited exceptions, a disciplinary investigation must be completed, and a firefighter must be notified of proposed discipline within one year of the agency's discovery of alleged misconduct.
(Gov. Code, § 3254, subd. (d)).
If, after investigation and any pre-disciplinary response or procedure, an agency decides to impose discipline, the agency must inform the firefighter in writing of its decision within 30 days of its decision, but not less than 48 hours prior to imposing the discipline.
(Gov. Code, § 3254, subd. (f)). Anon-probationary firefighter cannot be subjected to punitive action or denial of promotion without an opportunity for administrative appeal. (Gov. Code, § 3254, subd. (b)). The employer's appeal
procedure must comply with the rules and procedures set forth in Government Code section 11500, et seq..
(Gov. Code, § 3254.5). Prior to removing a fire chief, the agency must provide a chief with written notice, the reason(s) for removal, and an opportunity for administrative appeal.
(Gov. Code, § 3254(c)). Personnel Files No adverse comment may be entered into a firefighter's personnel file, or any other file used for any personnel purposes, without the firefighter having first read and signed the instrument. The firefighter has 30 days to prepare a written response to any adverse comment entered in his or her personnel file.
(Gov. Code, §§ 3255 and 3256). Upon request, a firefighter has the right to inspect his or her personnel file(s) during usual business hours and when the firefighter is on paid status. If the firefighter believes there is material in the personnel file that is mistaken or unlawful, the firefighter may submit a request to correct or delete the disputed material. The agency has 30 days to respond to the request.
(Gov. Code, §§ 3256.5). Political Activity No firefighter may be prohibited from engaging in, or be coerced or required to, engage, in political activity, except when on duty or in uniform.
(Gov. Code, § 3252(a)). No firefighter may be prohibited seeking election to or serving as a member of a governing board of a school or local agency in which the firefighter is not employed.
(Gov. Code, § 3252(b)). Disclosure of Personal Financial Information Generally, an agency may not require a firefighter to disclose personal financial information for the purposes of a job assignment or other personnel action unless required under state law or pursuant to a court order.
(Gov. Code, § 3258). Remedies for Violations of the Act Initial jurisdiction for alleged FBOR violations reside in the superior court. If an agency violates a firefighter's rights under the Act, an agency can be subject to injunction, penalties (up to $25,000 for each malicious violation), and actual damages, if any. An individual cannot be liable for
the same act as the agency.
(Gov. Code, § 3260). A firefighter and/or his or her counsel may be subjected to monetary sanctions and may have to pay a fire department's attorney's fees if a firefighter brings a FBOR action which is in bad faith or frivolous.
(Gov. Code, § 3260(c)(2)). Since there is no case law yet interpreting the FBOR, courts will almost certainly follow POBR case law in interpreting and applying the Act's provisions.
California Fire News / Friday, October 19, 2007
Landmark Firefighters Procedural Bill of Rights Signed by Governor Schwarzenegger
Firefighters Procedural Bill of Rights signed
It's taken two decades and untold buckets of blood, sweat and tears. But come January 1, the Firefighters Procedural Bill of Rights will be the law in California.
With broad support from both political parties and a signature from Governor Arnold Schwarzenegger, Assembly Bill 220 by Assemblywoman Karen Bass (D-Los Angeles) extends to firefighters the same fundamental on-the-job employee protections that now exist for police officers.
"In the public's mind, public safety professionals are on the same team," said California Professional Firefighters President Lou Paulson. "We face the same split-second decisions the same high-stress situations the same danger to life and limb. In signing this measure, Governor Schwarzenegger is recognizing that all first responders should be on an equal footing when it comes to protecting our due-process rights."
AB 220 is the culmination of a 20-year crusade by California Professional Firefighters to secure a consistent procedural standard for all first responders - police, firefighters and public agency EMS personnel - when they are the targets of investigation or interrogation by their superiors.
The landmark measure is designed to apply common-sense principles of fairness and professionalism to the process of investigating and disciplining first responders. As with the original Peace Officers Bill of Rights approved in the 1980s, AB 220 puts in place basic procedural safeguards that recognize the unique role of first responders:
No more unreasonable interrogation. The law requires that interrogation be conducted at reasonable hours, with compensation and without verbal or physical threats or extortion;
Protection of basic rights. Individuals must be advised of their rights and secures the right of representation in any and all interrogations; prohibits unwarranted search of personal property or forced submission to polygraph testing;
Maintaining professionalism. Authorizes recording any interrogation by employer or employee, and gives each access to the other's recordings and transcripts; statements made under duress can't be used in judicial proceedings;
Preserving appeal rights. Chief must provide written notice of removal or action and provide administrative appeal; appeals process must conform to state Administrative Procedures Act.
During the two-decade struggle, CPF has introduced a half-dozen different measures to enact these basic protections. Almost all fell victim to legislative partisanship or simple misinformation from employers.
This year, however, the measure enjoyed overwhelming support from both political parties, including near-unanimous support in the California Assembly. In addition to Schwarzenegger, the measure's champions included Assemblywoman Bass, Assembly Speaker Fabian Nunez, Senate President Don Perata and Assembly GOP Leader Mike Villines.
Also standing tall in this battle was GOP Assemblyman Todd Spitzer, who helped win converts from his own party during the legislative battle.
"California's firefighters are, and should be, held to the highest standards of public service," said Paulson. "We welcome these high standards, but they must be applied fairly. This measure establishes that standard of basic fairness, and we are grateful to the governor and the Legislature for their support."
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