In a somewhat surprising decision yesterday, the California Supreme Court unanimously held that the Firefighters Procedural Bill of Rights Act (Gov. Code section 3250 et seq.) does not necessarily give a firefighter the right to review and respond to negative comments in a supervisor’s daily log memorializing that supervisor’s thoughts and observations concerning an employee, when that log is used as a memory aid in preparing performance plans and reviews. [Poole v. Orange County Fire Authority (August 24, 2015) WL 4998965]. A copy of the opinion is available at http://www.courts.ca.gov/opinions/documents/S215300.PDF.

In overturning the Court of Appeal, the key issue upon which the Court based its holding was that the log at issue in this case was not shared with, or available to, anyone other than the supervisor who wrote the log, thus it does not constitute a file “used for personnel purposes by his or her employer” for purposes of the Act. Although this was a somewhat narrow holding, we are concerned about how it will be applied going forward. Will there be secret “logs” kept by all those who supervise firefighters? Will those secret logs – though not shared or used by others – be used by the supervisor to “refresh” his or her memory and subsequently create a document that is used for review and/or discipline many months after the incident at issue – when, by that point, the firefighter’s memory may have faded? The Court recognized such potential prejudice to the firefighters, but sidestepped it by noting that the section at issue (Gov. Code section 3255) simply requires the opportunity to review and respond to an adverse comment entered into a personnel file or a file used for personnel purposes. Here, the Court concluded that a supervisor’s log used only to refresh that supervisor’s memory and not seen by or available to others, was not a personnel file or a file used for personnel purposes, thus the firefighter did not have the right to review and respond to it.

This decision is almost certain to lead to additional fights over when a file is “shared with or available to” others. Additionally, questions are likely to be raised about if and how this will apply under the nearly identical Public Safety Officers Procedural Bill of Rights Act, and the interplay with Brady disclosure obligations.