Daily Log Is Not A ‘Personnel File’ For Purposes Of Firefighter Bill Of Rights

California’s Firefighters Procedural Bill of Rights Act contains a provision similar to those in firefighter and law enforcement bills of rights around the country. Under Section 3250 of the Government Code of California, a firefighter has the right to review and respond to any negative comment that is “entered in his or her personnel file, or any other file used for any personnel purposes by his or her employer.”

Captain Brett Culp, who supervised Firefighter Steve Poole at the Orange County Fire Authority, maintained what he called a “daily log” regarding each of the employees that he supervised. He created the log using both computer and handwritten notes. Culp created a separate file for each employee, stored on a flash drive and also in hard copy, which he kept in his desk with the employee’s name on it.

Culp included in the log “any factual occurrence or occurrences that would aid him in writing a thorough and fair annual review.” Culp would address with the employee behavior recorded in the log about which he had concerns, and if the behavior nevertheless continued it might be mentioned in the performance review.

Culp kept the log concerning Poole from December of 2008 to July of 2010. He used the log as a reference in preparing annual reviews and assessments of Poole’s performance under a performance improvement plan. The daily log prepared by Culp regarding Poole included many descriptions of Poole’s activities on the job and his interactions with Culp, noting both positive and negative aspects of Poole’s behavior. Some of the incidents described in the log were included in Poole’s annual performance reviews and his assessments under a performance improvement plan. For example, the log noted several incidents in which Poole failed to complete his assigned duties in cleaning up the fire station. As also noted in the log, Culp addressed his concerns with Poole before the annual evaluation in an attempt to correct Poole’s behavior, and Poole’s performance on cleanup duties was addressed in a performance improvement plan. Poole’s annual performance review indicated that this was an area in which he needed to continue to show improvement.

Many incidents recorded in the log were never included in a review. For example, Culp noted in the log that Poole left a training class early one day and went outside to talk on his cell phone. Culp later discussed the incident with Poole and his log notes indicate that Poole explained that he had already taken that class and passed the associated examination. The log also described a training session conducted in a stressful environment during which Poole became very anxious. Culp discussed this incident with Poole and offered him additional training. Neither of these incidents was mentioned in Poole’s annual performance review.

From time to time, Culp discussed his concerns about Poole’s performance with his own supervisors, human resource personnel, and attorneys for the County, relating some of the incidents recorded in his daily log. But he did not share the log itself with them and he did not allow other employees to review the daily log.

Poole had the opportunity to review all of his performance evaluations, which he understood were then placed in his personnel file at headquarters. Poole showed a copy of his performance evaluation to a union representative, Bob James. The level of documentation in the review caused James to wonder whether Culp may have been maintaining a file on Poole at the station house. James demanded that Culp provide him with a copy of Poole’s “station file,” and Culp gave him a copy of his daily log regarding Poole.

Shortly thereafter, Poole wrote to the director of human resources of the Orange County Fire Authority, asserting that the inclusion of negative comments in Culp’s daily log without providing Poole an opportunity to review those comments violated the Bill of Rights. Poole requested that all negative comments be removed from the log and that all “personnel files” be made available for his inspection. The Fire Authority denied his request, and the dispute wound up before the California Supreme Court.

The Court found that Culp’s daily logs were not “personnel files” covered by the Bill of Rights. The Court conceded that the “statutory language referring to a file ‘used for any personnel purposes by his or her employer’ might, in isolation, be read broadly enough to include Culp’s log, which he used in the performance of his duties as a supervisor.” However, reading a number of provisions of the Bill of Rights together led the Court to conclude “the Legislature was not concerned with any and all files that might in some sense be connected with personnel matters; the Legislature was, rather, specifically concerned with personnel files that are used or have been used to determine the firefighter’s qualifications for employment, promotion, additional compensation, or termination or other disciplinary action.

“As we have observed, an employee’s personnel file serves as a permanent record of his employment; derogatory information placed in that record may be used against the employee long after the informant becomes unavailable. Thus the statute provides the employee with the concurrent right to place on the record material in rebuttal. The Legislature appears to have included the phrase ‘any other file used for any personnel purposes by his or her employer’ in Section 3325 to ensure that employers will not be able to evade the statute’s protections by basing personnel decisions on materials contained in files that are not designated as the agency’s official personnel files. Thus, read in context, the phrase should be interpreted to encompass any written or computerized record that, although not designated a personnel file, can be used for the same purposes as a file of the sort described in the other sections of the Bill of Rights – as a record that may be used by the employer to make decisions about promotion, discipline, compensation, and the like.

“A supervisor’s log that is used solely to help its creator remember past events does not fall within the scope of that definition. Even if a supervisor uses his or her notes to help draft performance evaluations and other documents that ultimately are placed in a personnel file, the notes themselves are not a file preserved by the employer for use in making decisions about the firefighter’s employment status. Here, Culp was not Poole’s employer. Poole does not contend, and nothing in the record demonstrates, that Culp himself had the authority to take adverse disciplinary actions, such as demotions or discharge, against Poole on behalf of his employer, the Orange County Fire Authority. Culp’s comments thus could adversely affect Poole only if and when they were placed in a personnel file or in some other form to which the employer – that is, those who had the authority to discipline Poole – had access.

“In the present case, there is no evidence that Culp’s log would be available to anyone making personnel decisions in the future. The log was available to no one other than Culp himself. Many of the potentially negative comments contained in the log were never included in any document made available to Poole’s employer, because Culp either deemed the incidents inconsequential or resolved them in Poole’s favor. And it is undisputed that the documents Culp prepared with the assistance of the log – Poole’s performance evaluations and improvement plan – were disclosed to Poole before they were entered into his personnel file.”

Poole v. Orange County Fire Authority, 2015 WL 4998965 (Cal. 2015).