Principles for Public Safety Employment

Section 8 P ERSONNEL F ILES The POBR and FBOR provide public safety employees with certain rights with respect to reviewing and commenting on adverse comments in their personnel files. In addition, peace officer personnel records play an important part in law enforcement administration as well as operations. Laws regarding the confidentiality, maintenance and disclosure of public safety personnel records greatly influence the manner in which public safety agencies are managed, particularly in the disciplinary context. Public safety managers must be mindful that records of misconduct are potentially discoverable by criminal defendants and civil litigants and, as a result, can negatively impact the outcome of criminal and civil proceedings. The careful administration of peace officer and firefighter personnel records can reduce the likelihood of such outcomes, however. Additionally, it is possible that Labor Code section 1198.5, the general statute providing access to personnel files for most employees in California, whether in the public or private sector, could be applied to firefighters. Labor Code section 1198.5 expressly provides that an employee is not entitled to, review letters of reference, or reports or records that were: 1) obtained prior to the employee’s employment, 2) prepared by identifiable examination committee members, or 3) obtained in connection with a promotional examination. Importantly, unsuccessful applicants, i.e., persons not hired, are not entitled to review their employment application records. By its terms, section 1198.5 expressly excludes employees who are subject to the Public Safety Officers Procedural Bill of Rights, but makes no such express exclusion for firefighters. It is nonetheless more likely that a court would find that the firefighter-specific provisions of the FBOR with regard to personnel files (Gov. Code § 3255 et seq.) would control. A. R ECORDKEEPING R EQUIREMENTS FOR P UBLIC S AFETY E MPLOYEES ’ P ERSONNEL R ECORDS 1. A DVERSE C OMMENTS No public safety employee shall 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 employee having first read and signed the instrument containing the adverse comments indicating he or she is aware of such comment, except that such entry may be made if after reading such instrument the employee refuses to sign it. Should an employee refuse to sign, that fact shall be noted on that document, and signed or initialed the employee. 357 Under the POBR, an adverse comment is defined as an observation or remark expressing an opinion or attitude that might negatively impact an officer’s ongoing employment. 358 The same definition will likely apply to firefighters under the FBOR. Sacramento Police Officers Assn. v. Venegas 359 A police department’s internal affairs section maintained an index card for each of the department’s officers, and each index card listed “all complaints made against the officer, whether founded, unfounded, exonerated or not sustained.”

Principles for Public Safety Employment ©2022 (s) Liebert Cassidy Whitmore 110