By Robert M. Wexler, Partner 8/31/15
Last week, a California Supreme Court unanimously held that a firefighter did not have a right to review or respond to negative comments contained in a “daily log” kept by his supervisor pursuant to the state’s Firefighters Procedural Bill of Rights Act (California Government Code, Section 3250, et seq., the “Act”). The holding in Poole v. Orange County Fire Authority has far reaching ramifications for all sworn public safety employees, including law enforcement personnel, since the language of Section 3255 is effectively identical to that in the Public Safety Officers’ Procedural Bill of Rights Act (POBR), Section 3305.
In Poole, the plaintiff’s supervisor kept a “daily log” regarding each of the employees he supervised that consisted both of handwritten and computer notes of “factual occurrences” to aid him in writing the employees’ performance evaluations. The notes were stored on a flash drive and in hard copy, which were kept in the supervisor’s desk. From time to time the supervisor would discuss the incidents noted in his log with the involved employee or other supervisory personnel, but the log itself was not shared with the other supervisory personnel or employees.
Poole reviewed his performance evaluation with a union representative, who became suspicious at the level of detail. The union representative demanded access to Poole’s ”station file” and the supervisor revealed his log of Poole’s performance. Poole complained that inclusion of the negative comments in the daily log without having provided him the opportunity to review and comment on those notes violated his rights under Section 3255, which provides that a “firefighter shall not have any comment adverse to his or her interest entered in his or her personnel file, or any other file used for personnel purposes without the firefighter having first read and signed the instrument containing the adverse comment indicating he or she is aware of the comment.” A firefighter then has 30 days to attach a written response to the adverse comment, which must be attached to, and accompany, the negative comment (Section 3256).
Poole ultimately filed suit. The trial court determined the daily log was not subject to 3255. The Court of Appeal reversed, reasoning that the notes were a “file used for…personnel purposes” within the meaning of Section 3255 because they formed the basis of Poole’s substandard evaluation and because the supervisor orally revealed some of the contents of the notes to other supervisors. The employer appealed.
The Supreme Court granted review and reversed. It held that “because the log was not shared with or available to anyone other than the supervisor who wrote the log, it does not constitute a file ’used for any personnel purposes by his or her employer’” within the meaning of Section 3255. The Court noted that the phrase “any file used for personnel purposes by his or her employer” is not defined by the Act. However, the Court read Section 3255 in conjunction with Sections 3256 and 3256.5, the latter of which entitles a firefighter 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” and to request that material unlawfully or mistakenly placed in the file be corrected or deleted. The Court deduced that the legislature was therefore not concerned with just any file that might in some sense be connected with personnel matters, but only those files used specifically to determine fitness “for employment, promotion, additional compensation or termination or other disciplinary action.” Thus, the Court reasoned, that even if a supervisor uses his notes to draft a performance evaluation or other documents that are ultimately placed in an employee’s personnel file, the notes themselves are not maintained by the employer for use in making employment decisions.
In reaching its holding, the Supreme Court distinguished Poole from the line of appellate court decisions that held disclosure requirements applied to adverse comments about a police officer that were neither entered in the officer’s personnel file nor used in making personnel decisions, because those cases involved files that might be available to people making employment decisions in the future. Since the supervisor’s daily log was used only to help its creator remember past events and not shared with anyone, it did not fall within that definition.
As mentioned at the outset, this case is significant for both firefighters and law enforcement officers since Sections 3255, 3256 and 3256.5 of the Firefighters Act are substantively identical to Sections 3305, 3306 and 3306.5 of POBR. As a result, the long-held belief that a supervisor could not keep private logs on an employee appears incorrect as long as the notes are not themselves made part of a personnel file or accessible to others who might make employment decisions in the future about an employee’s fitness for employment, promotion, additional compensation or termination or other disciplinary action.
Robert Wexler is a partner with RAINS LUCIA STERN, PC and manages its Southern California Collective Bargaining Practice Group. He has represented California police officers and firefighters for over 20 years and, in 2011, was selected for inclusion on the Southern California SuperLawyers list.