The Fire Fighter's Procedural Bill of Rights...at First Glance

A.        INTRODUCTION

On October 13, 2007, Governor Arnold Schwarzenegger signed into law Assembly Bill 220, the Firefighters Procedural Bill of Rights Act (FBOR), giving firefighters many of the same rights as peace officers, and more.

The legislation was introduced by Assembly Member Karen Bass and was primarily sponsored by the California Professional Firefighters Association.  The bill was opposed by, among other organizations, the League of California Cities and the California State Association of Counties.  Modeled in large part upon the Public Safety Officers Procedural Bill of Rights Act (POBR), which was enacted over 30 years ago, the FBOR is codified at Government Code sections 3250 through 3262 and becomes effective on January 1, 2008.  Case law interpreting the POBR is sure to be applied in interpreting the new law,[1] but there are both subtle and not so subtle differences between the two laws that will require courts to address issues of first impression.

This article introduces readers to the FBOR’s most significant provisions and highlights some of the contentious issues expected to arise as a result of the legislation.  (Please note that a lengthy article could be written about some aspects of the new law.  This article is only intended as an introductory overview of the new law.  The article is not a catalog of all of the law’s requirements.  Therefore, readers are encouraged to seek legal counsel regarding the application of the new law to any specific set of circumstances.)

B.        PERSONS PROTECTED BY THE ACT

            The FBOR generally applies to any firefighter employed by a public agency, including any firefighter who is a paramedic or emergency medical technician.[2]  However, the Act does not protect inmate firefighters, or individuals who are already protected by the POBR, such as arson investigators.[3]  Moreover, unlike the POBR which protects probationary peace officers,[4] the FBOR does not protect firefighters who have not yet passed probation.[5]

Interestingly, the FBOR states that “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.”[6]  This ambiguous language, which does not appear in the POBR, and which did not appear in the bill at its introduction, raises many questions.  For example, it is unclear whether a firefighter who is involved in non-work related misconduct during work hours, such as sexual harassment, would be afforded any procedural protections during his or her employer’s investigation of the alleged misconduct.  Indeed, courts have held that public employees are generally not entitled to indemnification by their employers in sexual harassment cases because harassment is not within the scope of employment and therefore does not involve the performance of official duties.[7]  The same question arises with regard to off-duty conduct, such as drunk driving, since off-duty misconduct may have a job nexus but, by definition, does not involve the performance of official duties.

It is also unclear whether the FBOR protects volunteer firefighters.  The FBOR is silent regarding whether volunteer firefighters are entitled to its protections, whereas the POBR clearly provides that reserve police officers are not covered.  On the one hand, volunteer firefighters occupy a unique status amongst volunteers in the public sector and it is not farfetched to imagine that they would be protected by the FBOR.  For example, Labor Code section 1964 permits a volunteer fire department to establish procedures for the dismissal of volunteer firefighters and even allows for the establishment of a probationary period without creating property rights in the “volunteer firefighter job or position.”  Yet, in the past, the Legislature seems to have taken care to distinguish between professional firefighters and volunteer firefighters, clearly stating when volunteers are entitled to receive some of the same benefits.  For instance, under Government Code section 68097, volunteer firefighters are expressly treated as public employees for purposes of payment of witness fees.  Since the legislation’s primary sponsor was the California Professional Firefighters, and since the legislation does not specify that volunteer firefighters are protected, it appears reasonable to conclude that the FBOR was not intended to, and does not protect volunteer firefighters.

C.        RIGHTS CREATED BY THE ACT

            1.         Political Activity

            The FBOR contains the same provisions as the POBR with respect to firefighter political activity.  A department may not prohibit a firefighter from engaging in, or coerce or require a firefighter to, engage, in political activity, except when on duty or in uniform.[8]  Likewise, no firefighter may be prohibited from 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.[9]

            2.         Disciplinary Investigations

Similar to the POBR, the FBOR establishes procedural safeguards which apply in the context of disciplinary investigations.  In many respects, the FBOR’s procedural protections mirror the protections afforded peace officers under the POBR, although there are some critical differences as well.

            a.         Interrogations

The FBOR, like the POBR, provides that whenever an interrogation of a firefighter by a supervisor 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” — a firefighter:  a) must be provided certain information (the nature of the investigation, the identities of the officer in charge of the interrogation as well as the interrogating officers and all other persons to be present during the interrogation), b) cannot be subjected to questioning by more than two interrogators, c) may record the interrogation, and d) may access the employer’s recording of the interrogation if further proceedings are contemplated.

A firefighter may not be threatened,[10] or interrogated for more than a reasonable period of time.[11]  Moreover, a firefighter cannot be subjected by his or her employer to visits by the press or news media without his or her permission.[12]  Nor may an employer release a firefighter’s photograph, address, telephone number, or other contact information to press or news media without the firefighter’s consent.[13]

            Confusion is bound to occur among fire personnel regarding what supervisory communications trigger the FBOR’s procedural safeguards.  Like the POBR, the FBOR states that it does not “apply to counseling, instruction, or informal verbal admonishment by, or other routine or unplanned contact with, a supervisor or any other firefighter.”[14]  Therefore, courts will rely upon earlier landmark decisions interpreting the POBR — e.g. City of Los Angeles v. Superior Court (Labio)[15] and Steinert v. City of Covina[16] — in applying the FBOR.  Yet, the firehouse is different from the police station and new twists can be expected.  Indeed, since firefighters live with each other for days at a time, there will be many more opportunities for seemingly informal conversations between supervisors and subordinates to evolve into formal disciplinary proceedings and result in litigation.

Greater confusion will result from the new protections for firefighters who are interrogated about alleged misconduct with criminal implications.  Similar to the POBR, the FBOR states that if 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.”[17]  Interpreting the same language in the POBR, in Lybarger v. City of Los Angeles,[18] the California Supreme Court held that the requirement that an officer be advised of his or her constitutional rights means that he or she must be:  1) Mirandized — informed of the right to remain silent, the right to the presence and assistance of counsel, and the admonition that any statements may be used against the employee in a court of law, 2) told his or her silence could be deemed insubordination, leading to administrative discipline, and 3) further told that any statement made under the compulsion of the threat of such discipline could not be used against him or her in any subsequent criminal proceeding.

            Yet, the FBOR includes a significant added protection for firefighters that is not afforded to peace officers under the POBR — the right to formal immunity in exchange for answering an employer’s questions regarding potentially criminal misconduct.  The FBOR states: “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.”[19] 

That language, which did not appear in the original legislation, seems to have been intended as a hedge against the risk that the Supreme Court will reverse the Court of Appeal’s controversial decision in Spielbauer v. County of Santa Clara,[20] which held that a deputy public defender who was Lybargered could not be discharged for not answering his employer’s incriminating questions without a formal grant of immunity.  The Supreme Court granted review on May 9, 2007, and the next version of the FBOR introduced included the language in question.

            The Spielbauer-type language that was added to the legislation is ambiguous and will spur litigation.  For instance, it is hard to know what the Legislature intended when it said that an employer must not only provide to, but also “obtain from” its own employee a formal grant of immunity.  Also, as written, the legislation seems to allow an employer to provide a formal grant of immunity, this may be counter-intuitive to some who will question whether a non-prosecutorial agency can grant immunity when the Attorney General and district attorneys generally possess the discretion whether to file criminal charges.  Ironically, based on how the new legislation is written, it appears that what the Supreme Court had sought to avoid by its Lybarger decision could come true — “the petty infractor who fails to respond to questioning could be subject to punitive action while the criminal offender could refuse to cooperate with absolute impunity.” [21]

b.      Privacy Rights

The FBOR also creates privacy rights for firefighters that will impact disciplinary investigations but which also apply outside the context of investigations.  For instance, similar to the POBR, the FBOR prohibits a fire department from searching a firefighter’s locker or other storage space without either a search warrant, the firefighter’s presence, consent, or prior notification.[22]  Moreover, the FBOR provides that 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.[23]  The FBOR also provides that a firefighter cannot be compelled to submit to a lie detector test.  According to the statute, there shall be no negative repercussions for a firefighter who refuses to take one.[24]

3.         Imposition of Discipline

            The FBOR’s protections regarding the imposition of discipline closely parallel the POBR’s provisions, but with some notable differences.  Like the POBR, an employer must complete its disciplinary investigation and notify a firefighter of any proposed discipline within one year of the employer’s discovery of alleged misconduct.[25]  Unlike the POBR, this requirement applies not only to employers but also to a licensing or certifying agency which may impose discipline against a firefighter.

Another interesting difference between the POBR and the FBOR is what triggers the one year statute of limitations.  Under the POBR, the one-year statute of limitations is triggered by the public agency’s discovery by a person authorized to initiate an investigation of the allegation of misconduct.[26]  This has generally meant that the one year statute begins to run when a supervisor becomes aware of the misconduct.  However, the FBOR provides that the limitations period begins to run when the “employing fire department or licensing or certifying agency” discovers the allegation of misconduct.  Some firefighters are certain to argue that this means that the statute begins to run when any member of the employing agency becomes aware of the misconduct, although courts might consider that an unreasonable interpretation of the legislation.

            If, following any pre-disciplinary response or procedure, an employer decides to proceed with discipline, the employer must inform the firefighter in writing of its decision within 30 days but “not less than 48 hours prior to imposing the discipline.”[27]  This suggests that, unlike under the POBR, there will be a 48 hour window before discipline can become effective during which a settlement could be negotiated or a firefighter could seek judicial intervention to prevent the discipline.

            4.         Administrative Appeals

            The FBOR, like the POBR, provides that an employee who has completed probation and is subjected to punitive action or denied promotion on grounds other than merit must be afforded administrative appeal.[28]  Similarly, 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.[29] 

However, unlike the POBR, the FBOR requires any administrative appeal to be conducted in conformance with the rules and procedures adopted by the employer that are in “accordance with” the requirements of Government Code sections 11500, et seq.  This requirement will likely be a subject of litigation.  For example, a firefighter who is terminated has also suffered a punitive action under the FBOR and is entitled to an administrative appeal.  Most employers, including charter cities and counties, already have elaborate procedures in place for handling appeals from termination.  Those existing procedures may parallel, but are unlikely to duplicate, the procedures set forth at Government Code sections 11500 et seq.  Issues will therefore arise regarding if and when an employer, such as a charter agency, must modify its existing appeals procedures to satisfy the FBOR.

Also, the requirements of Government Code sections 11500 et seq. only apply when a right, authority, license, or privilege is being revoked, suspended, limited or conditioned.[30]  Therefore, an employer does not have to comply with the appeals procedures contained in Government Code sections 11500, et seq. in providing a firefighter with an appeal from a punitive action that does not fall within those categories of actions, such as a written reprimand.  Under those circumstances, the FBOR does not specify the scope of the appeal that is required to be provided.

            5.         Personnel Files

            With respect to personnel files, the FBOR generally provides the same rights as the POBR.  Specifically, 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.  A firefighter then has 30 days to prepare a written response to any adverse comment entered in his or her personnel file.[31]

In addition, 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 then has 30 days to respond to the request.[32]

The Penal Code defines the term “personnel files” for police officers,[33] but there is no equivalent for firefighters.  Because the FBOR specifically states “personnel file or any other file used for any personnel purposes,” courts will likely interpret this provision broadly to mean any file maintained which could impact a firefighter’s employment, whether it be the official file maintained by a human resources department or a “drop file” maintained by a supervisor.

D.        REMEDIES FOR VIOLATIONS OF THE ACT

The FBOR generally provides the same remedies as the POBR.  Superior courts have initial jurisdiction over alleged FBOR violations.  Firefighters can seek injunctive relief, penalties (up to $25,000 for each malicious violation), and actual damages, if any.  In turn, a firefighter who initiates an action in bad faith or that is frivolous may be sanctioned and required to pay the agency’s attorney fees. [34] 

The Court of Appeal recently held in Lozada v. City and County of San Francisco, that a police officer had to file a tort claim with the City before he could seek civil penalties or actual damages for alleged POBR violations.[35]  Consequently, a firefighter will also have to file a tort claim prior to filing a FBOR claim for penalties or damages. 

Like the POBR, the FBOR provides that “an individual shall not be liable for any act for which a fire department is liable.”[36]  Many trial courts have interpreted the identical POBR provision to bar individual liability.  However, the statute’s vague wording may lead to additional litigation. 

E.        CONCLUSION

            Thirty years later, firefighters have achieved many of the same protections that have long been afforded to their law enforcement counterparts.  However, as can be seen, the FBOR provides firefighters with a number of different and significant new rights not afforded to peace officers.  After January 1, 2008, life on the apparatus floor will never be the same.