On August 24, 2015, the California Supreme Court created a limited exception to the right of a firefighter to review and respond to notes kept by a supervisor for later use in preparing personnel evaluations.
In Poole v. Orange County Fire Authority, the Supreme Court interpreted Government Code section 3255, a provision of the Firefighters’ Procedural Bill of Rights Act (FBOR), which states:
“A firefighter shall not have any comment adverse to his or her interest entered into his or her personnel file, or any other file used for any personnel purposes by his or her employer, without the firefighter having first read and signed the instrument containing the adverse comment indicating he or she is aware of the comment. However, the entry may be made if after reading the instrument the firefighter refuses to sign it. That fact shall be noted on that document, and signed or initialed by the firefighter.”
It is well established that employers must provide public safety employees with the opportunity to read, review, and respond to negative comments used for a personnel purpose. The narrow question in Poole was whether a file of personal notes maintained by a supervisor were “used for a personnel purpose” when the supervisor did not share the file with anyone, and did not make the contents of the file available to anyone with authority to take adverse disciplinary action. In this limited, narrow circumstance, the Supreme Court held that the supervisor was not required to provide the subject employee with the opportunity to read, review, and respond to the negative comments.
The FBOR was enacted in 2007 to provide firefighters with similar rights as those guaranteed to peace officers in the Public Safety Officers’ Procedural Bill of Rights Act (POBR). Because the language of section 3255 mirrors the POBR language in Government Code section 3305, this decision will impact both firefighters and peace officers.
A fire captain with the Orange County Fire Authority maintained a “daily log” regarding each of the employees that he supervised. The captain created a separate individually named file for each employee, which he kept in his desk. The log contained descriptions of the employee’s activities on the job, and included both positive and negative aspects of the employee’s behavior. The log was used to assist the captain in preparing annual reviews and performance assessments. Although the fire captain periodically discussed his documented observations about his subordinates with his supervisor, and with human resources personnel, the captain did not share the log itself with anyone.
The log noted several incidents where Firefighter Steven Poole failed to complete his assigned duties in cleaning up the fire station. The log entries were not shared with Poole. However, those incidents were addressed in a performance improvement plan and noted in Poole’s annual evaluation.
Not all documented negative notations made their way into the performance evaluation. For example, an incident was noted in the daily log about Poole leaving a training class early to talk outside on his cell phone. Although that incident prompted a discussion with the captain, which was noted in the log, it was an isolated matter that was resolved without the need for a notation in the performance evaluation.
The Supreme Court held that negative comments and notes memorializing a supervisor’s own thoughts and observations did not trigger the employee’s FBOR rights when the supervisor’s log is not made available to, or shared with, anyone else, and where the supervisor had no independent authority to take negative action against the employee.
Specifically, the court concluded that such files do not trigger the employee’s rights under either Government Code section 3255 or 3256. Section 3255 requires the employer to inform the firefighter of any comment adverse to his or her interest in a personnel file or any other file used by the employer for personnel purposes. Section 3256 entitles a firefighter to respond, in writing, to any adverse comment “entered in his or her personnel file” and mandates that the comment “be attached to, and  accompany, the adverse comment.”
The Court held that where a supervisor’s log is “used solely to help its creator remember past events,” and is not shared with the creator’s supervisors, compliance with Government Code section 3255 is not required. However, once the negative comments are used in a performance evaluation, or transmitted, in writing, to persons who make decisions related to the firefighter’s “qualifications for employment, promotion, additional compensation, or termination, or other disciplinary action,” then compliance is required.
This decision does not stand for the proposition that all supervisor logs and notes are exempt from the obligations imposed by the FBOR (Government Code sections 3255-3256) or the POBR (Government Code sections 3305-3306). If the log is open to viewing by others, is maintained by a supervisor that has the authority to take or recommend disciplinary actions, and/or is used for any personnel purpose other than simply to refresh memory in preparation for an evaluation, the subject employee must be given the opportunity to read, review, sign, and respond to the adverse comment.
Government Code sections 3255-3256 (FBOR) and 3305-3306 (POBR) create obligations on employers who wish to document negative events for later use in either performance evaluations or disciplinary actions. The failure to comply can be fatal to the Department’s ability to rely upon those comments. Therefore, a conservative supervisor will continue to share and document the materials placed in his or her log with the subject employee despite the Supreme Court’s decision.
In Poole, the Supreme Court carved out a narrow exception. Two key facts were central to that exception: (1) that the logs were not made available to, or shown to, anyone other than the fire captain who supervised Poole that made the performance notes; and (2) that the fire captain had no independent authority to take any adverse action against the firefighter. A change in either of these facts could render the supervisor logs in your agency subject to the requirements under the FBOR or POBR that the employee be given the opportunity to read, review, sign, and respond to the adverse comment before it is placed in the log, and could jeopardize the Department’s ability to rely upon such documentation in later proceedings.
From my perspective, the best practice for any supervisor maintaining a log or file related to performance is to show and discuss the entries with the subject employee at the time the notations are made. The reason: one of the supervisor’s fundamental responsibilities is to ensure that employees conform to departmental expectations, practices, and policies. Secret files that simply document negatives without providing the opportunity for the subject employee to learn from the event and correct his or her behavior fail, in my opinion, to take advantage of the opportunity to turn a negative into a positive. Such surprise negatives can also create the perception that the supervisor is simply wants to “sandbag” his or her subordinates, and fosters the belief that supervisors are only “out to get” them and are unfair.
Therefore, while this decision permits a supervisor to keep all written notes, comments, and logs, both good and bad, to his or herself without needing to comply with the obligations imposed by Government Codes 3255-3256 and 3305-3306, such a practice may not be as productive as taking the opportunity to use the incidents as a learning event, or to reinforce departmental expectations, practices, and policies. Consequently, I encourage agencies and supervisors to continue the practice that has long existed in law enforcement of sharing and discussing the entries with the subject officer at the time the notation is made.
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