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 disciplinary procedures used for 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 paramedics or emergency medical technicians. 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, § 3253, 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 either 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 predisciplinary 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)).
A non-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 § 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 resides 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.
Special thanks to the California law firm of Liebert Cassidy Whitmore, which authored this article.
This article appears in the December 2007 issue