On February 26, 2014, the California Supreme Court agreed to review the Court of Appeal decision in Poole v. Orange County Fire Authority.

Given the nearly identical language in the Public Safety Officers Bill of Rights Act ("POBR") as in the Firefighters' Procedural Bill of Rights Act ("FBOR"), this case will affect law enforcement agencies as well as fire protection agencies.

The FBOR, enacted in 2007, was intended to provide firefighters the same rights as those guaranteed to public safety officers by the POBR. In many areas, the FBOR contains language identical to that in the POBR. One of these areas provides, in part, 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 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." FBOR provides the firefighter 30 days to respond in writing to the adverse comment, and states that the written response is to be attached to the adverse comment.

Steve Poole was a firefighter with the Orange County Fire Authority (Fire Authority). From 2008 to 2010, Fire Captain Culp supervised Poole and was responsible for evaluating his performance. To assist in preparing the written evaluations of his subordinates, Captain Culp had a practice of preparing daily logs on each of the firefighters he supervised. The daily logs were maintained by Captain Culp on a flash drive and in folders kept in his desk at the fire station. According to Captain Culp, the daily logs included "[a]ny factual occurrence or occurrences that would aid . . . in writing a thorough and fair annual review." Captain Culp used his informal daily logs to assist him in preparing Poole's annual performance evaluation for 2009. In that 2009 annual performance evaluation, Poole received a substandard evaluation from Captain Culp because his "work habits, personal relations, adaptability, and progress were unsatisfactory." As a result of this substandard evaluation, Poole was placed on a performance improvement plan. Prior to the imposition of the performance improvement plan, Captain Culp informed his supervisor, Battalion Chief Phillips, of the daily logs and of Poole's performance deficiencies.

Unsatisfied with his substandard evaluation, Poole sought assistance from his bargaining unit representative, the Orange County Professional Firefighters Association (OCPFA). The OCPFA asked Captain Culp whether he kept notes of Poole's substandard performance because the evaluation contained specific details of incidents that had occurred during the previous year. Captain Culp eventually provided the OCPFA his daily logs on Poole that included more than 100 entries, many of which described areas in need of improvement. Poole requested that all adverse comments in the daily logs be removed because he never had any opportunity to respond prior to their use for personnel purposes in his performance evaluation and subsequent improvement plan. The Fire Authority refused to remove the comments, contending that, even though the notes were for personnel purposes, they were never "entered" into any file used for personnel purposes. Rather, the Fire Authority told Poole that, to the extent the daily logs were incorporated into the annual performance evaluation was placed in his personnel file, he had the opportunity to respond to the comments after reviewing his performance evaluation.

Poole and the OCPFA filed a petition and verified complaint in Orange County Superior Court, requesting that the Fire Authority enter adverse comments in Poole's files only after complying with the FBOR. The trial court denied the petition, likening the daily logs to "post-it" notes that were intended to remind the supervisor of events when he prepared the annual performance evaluation. The trial court also pointed out that the parties conceded that if Captain Culp had written Poole's annual performance evaluation from his memory and not based on written recollections in the daily logs, there would have been no lawsuit. The trial court therefore concluded the daily logs were not part of the personnel file and Poole had no right to respond to the adverse comments. Poole and OCPFA then appealed.

In its review, the Court of Appeal relied on case law interpreting the POBR, because the FBOR is relatively new. The Court observed the intent of the POBR was "to protect peace officers from unfair attacks on their character" and that a similar concept necessarily applies to firefighters covered under the FBOR. According to the Court, the most important element is to provide the officer or firefighter the opportunity to respond to allegations of wrongdoing. The Court referenced three POBR cases in reaching its conclusion that the daily logs were part of a file used for personnel purposes. However, none of those POBR cases were on point in addressing a supervisor's use of notes to assist in preparing an evaluation. As a result, the court relied heavily on an older California Supreme Court case, Miller v. Chico Unified School District, which interpreted an Education Code section regarding a teacher's right to review and comment on information of a "derogatory nature" before placed in their personnel file. The Supreme Court held that the protections provided in Education Code section 44031 also applied to personal notes kept by an Assistant Superintendent that were not in the formal personnel file but yet affected a teacher's job status.

The Court held that the interpretation of the Education Code in the Miller decision should be applied to sections 3255 and 3256 of the FBOR. It noted that Captain Culp's daily logs were used for making personnel decisions and affected Poole's employment status through his annual performance evaluation and subsequent improvement plan. Poole received a substandard annual performance evaluation based upon the information in the daily logs without having the opportunity to be made aware of and respond to the adverse comments in those daily logs. The Court reversed the trial court's decision and concluded that the FBOR was violated because the daily logs were used for personnel purposes. The Court noted that the FBOR's right to respond to adverse comments that may affect personnel decisions "is frustrated when the firefighter's supervisor maintains a daily log containing adverse comments that may reach as far back as the day after the firefighter's last yearly evaluation and the adverse comments are not revealed to the firefighter until the next yearly review, at which point the firefighter may respond to adverse comments in that review."

If the Supreme Court should reverse the Court of Appeal, it will call into question the notion that employees protected under FBOR and POBR have access to supervisor's files kept solely for recollection in the preparation of an annual evaluation. We will monitor this case and update you as it proceeds.