Principles for Public Safety Employment

taking punitive action against a firefighter if the employer has violated the FBOR. In addition, this section authorizes a superior court to award a firefighter actual damages, a civil penalty not to exceed $25,000, and attorney’s fees if the firefighter can prove the employing fire department “maliciously” violated the firefighter’s FBOR rights. Section 3261: This section provides that nothing in the FBOR shall be construed in any way to limit the use of any employing department or firefighter in the fulfilling of mutual aid agreements with other jurisdictions or agencies. Further, this section provides that nothing in the POBR shall be construed in any way to limit any jurisdictional or interagency cooperation under any circumstances where such activity is deemed necessary or desirable by the jurisdictions or the agencies involved. Section 3262: This section states that the FBOR rights and protections shall only apply to a firefighter “during events and circumstances involving the performance of his or her official duties.” B. W HO IS E NTITLED TO P ROTECTION U NDER THE POBR AND FBOR? All peace officers specified in sections 830.1, 830.2, 830.3, 830.31, 830.32, 830.33, except subdivision (e), 830.34, 830.35, except subdivision (c), 830.36, 830.37, 830.38, 830.4, and 830.5 of the Penal Code are entitled to the POBR’s protections. b. Probationary Employees The POBR gives some, but not all, of the rights described in the Act to probationary officers. Each section of the POBR specifies whether the Legislature intended that probationary officers receive the rights specified in that particular section of the Act. For example, Government Code section 3304 does not afford a probationary officer the right to an administrative appeal hearing when he or she is released for failing to pass probation. The Legislature made this clear by adding language to section 3304 in 1998 that provides hearing rights to any officer “who has successfully completed the probationary period.” 91 Moreover, in a recent California Court of Appeal decision, the Court held that an officer who was promoted to a supervisor, but failed to successfully complete his promotional probationary period was similarly not entitled to an administrative appeal hearing to challenge the determination that he failed probation. 92 In the case, the employee was restored to his previous position. The Court concluded that the release from promotion was not a punitive action within the meaning of Section 3304(b). The court also disagreed that restoring a permanent employee to his or her previous position as a result of a failure to perform adequately while on promotional probation constitutes a demotion. 1. E MPLOYEES C OVERED U NDER THE POBR a. Peace Officers Generally

Principles for Public Safety Employment ©2022 (s) Liebert Cassidy Whitmore 34