California Court of Appeals, Fourth District, Third Division
Appeal from a judgment of the Superior Court of Orange County No. 30-2011-00463651, Geoffrey T. Glass, Judge.
Silver, Hadden, Silver, Wexler & Levine and Richard A. Levine for Plaintiffs and Appellants.
Haight Brown & Bonesteel, Jules S. Zeman, Kevin M. Osterberg and Blythe Golay for Defendant and Respondent.
The FireFighters Procedural Bill of Rights (FFBOR) provides: “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....” (Gov. Code, § 3255, italics added; all undesignated statutory references are to the Government Code unless otherwise stated.) Steve Poole is a firefighter with the Orange County Fire Authority (OCFA) and a member of the Orange County Professional Firefighters Association, an employee organization for firefighters, fire apparatus engineers, and fire captains. Although OCFA’s official personnel files are kept in Irvine, at OCFA’s headquarters, Poole’s fire captain kept a separate file at the fire station on each of the firefighters he supervised. The captain maintained in those files what he characterized as daily logs documenting the activities of the firefighters. The files were kept solely for a personnel purpose; for the captain’s use in preparing yearly evaluations (or evaluations required by a performance improvement plan).
Poole did not know about any adverse comments in the file maintained by the captain until the captain gave him his yearly evaluation. Even then, not all the adverse comments in the daily logs were included in Poole’s evaluation. The daily logs themselves were not seen by Poole until a representative from his employee organization demanded them. When Poole requested all adverse comments be deleted from the daily logs pursuant to section 3256.5, subdivision (c),  OCFA refused, claiming the daily logs were not subject to FFBOR, in part because “while the notes were intended to be used for personnel purposes, they were never ‘entered’ into any file.” (Italics added.)
The issue presented in this appeal is whether the files containing the daily logs are within the ambit of section 3255. Likely many supervisors keep some sort of notes to prepare accurate annual employee reviews, but most supervisors are not operating under a statutory scheme similar to the one we have here, which requires that no adverse comment be entered in to any file used for personnel purposes “without the firefighter having first read and signed the instrument.” Here OCFA admits the daily logs were intended to be used for personnel purposes. Because the daily logs on firefighters are used for personnel purposes, we conclude they are subject to provisions of FFBOR. We therefore reverse the judgment entered in favor OCFA and remand the matter to the superior court for further proceedings consistent with this decision.
Since becoming a fire captain, Brett Culp has made handwritten and computerized notes, referred to by the parties throughout these proceedings as daily logs, on the performance of each of the employees he supervised. Culp included in his daily logs “[a]ny factual occurrence or occurrences that would aid... in writing a thorough and fair annual review.” The logs document the efficiency of the firefighters under Culp’s supervision, including whether firefighters complied with instructions and adhered to rules. Culp kept the electronic entries on a flash drive containing a separate file on each employee he supervised. He also maintained a hard copy in a manila folder he kept in his desk with the employee’s name on it.
Poole has been a firefighter with OCFA since 1984. Culp supervised Poole from December 2008 to October 2010 at station No. 46 and prepared an OCFA performance evaluation on Poole for the period of September 28, 2008, to September 28, 2009. He gave Poole an overall rating of substandard. Specifically, Culp found Poole’s work habits, personal relations, adaptability, and progress were unsatisfactory. Poole was subsequently placed on a performance improvement plan. Prior to imposition of the performance improvement plan, Culp told his superior, Battalion Chief Dave Phillips, of the contents of the file he kept on Poole. Culp notified Phillips because he felt the daily logs contained incidents indicating concern and Phillips should know about them. In all, Culp prepared two annual reviews and three evaluations of Poole’s progress on the performance improvement plan.
After he received his first substandard evaluation, Poole went to see Bob James, his representative with Orange County Professional Firefighters Association. James noted the specific details in the evaluation and asked Poole whether Culp had a file on him. Poole said he did not know of any.
On August 9, 2010, James appeared at station No. 46 and demanded Poole’s “station file.” Culp gave James the daily logs he kept on Poole. The daily logs contained more than 100 entries. Culp had noted numerous areas where he thought Poole needed to improve, including Poole’s failure to be prepared in a timely fashion, leaving his shift before passing his pager to his replacement,  failing to remove his gear from the OCFA unit before leaving for the day, failing to take responsibility for hitting another crew member with a pike pole, failing to perform cleanup duties, and the fact that Poole apparently panicked during a training exercise.
On September 8, 2010, Poole wrote a letter to OCFA requesting the removal of all adverse comments in his “personnel file” located at the station house. Fifteen days later, OCFA responded, stating that “while the notes were intended for personnel purposes, they were never ‘entered’ into any file” as required by section 3255. OCFA further stated the notes were not part of Poole’s personnel file and to the extent any of the comments in Culp’s notes made it into Poole’s personnel file via a performance evaluation, Poole had the ...