Principles for Public Safety Employment

Citing Government Code section 3305, one of the city’s officers and his union requested an opportunity to read and respond to the comments contained on the internal affairs division’s index cards. The department denied the request on the grounds that the index cards themselves did not result in an adverse employment action and because the internal affairs index cards were not personnel files or any other file “used for personnel purposes” within the meaning of Section 3305. The officer and union challenged the department’s denial by filing a petition for writ of mandate. The trial court denied the petition, and the officer and his union appealed. The California Court of Appeal reversed and held that the department's internal affairs index cards were used for personnel purposes within the meaning of the statute, and therefore officers were entitled to read and respond to any “adverse comment” contained therein even though such comments did not result in any adverse personnel action. Poole v. Orange County Fire Authority 360 A fire captain kept “daily logs” on the firefighters he supervised, which he maintained on a flash drive and folders kept in his desk at the fire station. He then used these daily logs to aid his memory in preparing firefighters’ performance evaluations. The California Supreme Court held that these daily logs were not “files used for any personnel purposes” within the meaning of § 3255. The Supreme Court reversed the Court of Appeal’s ruling, which held that if the daily logs were used for making personnel decisions and affected plaintiff Poole’s employment status through his annual performance evaluation and the resulting performance improvement plan then they would be considered adverse comments. 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.” In reversing the Court of Appeal, the Supreme Court relied heavily on the fact that the fire captain did not have the ultimate authority to take employment action against the plaintiff firefighter, and that the daily logs were not available to or shared with persons with the authority to impose discipline. The fire captain did, however, share some of the contents of these daily logs orally. The Supreme Court noted that some of the negative remarks in the daily log were not included in Poole’s performance evaluation because the supervisor deemed them inconsequential or resolved them in the employee’s favor. The documents that the supervisor prepared with the assistance of the log – the plaintiff’s performance evaluations and employment plan – were disclosed to the plaintiff for his comment before being placed in the personnel file.

Principles for Public Safety Employment ©2022 (s) Liebert Cassidy Whitmore 111