Principles for Public Safety Employment

c. Inmate Firefighters The FBOR specifically states that it does not cover inmates who perform firefighting or related duties. 110 Although inmate firefighters are paid for their services, they are not subject to the FBOR’s provisions. d. Fire Chiefs Fire Chiefs are entitled to protection under the FBOR. 111 The FBOR states that a fire chief cannot be removed without affording him or her written notice, the reason(s) for removal, and an opportunity for administrative appeal. These protections apply only to the jurisdiction’s fire chief, and not to subordinate “chiefs” such as assistant chiefs, deputy chiefs, division chiefs, or battalion chiefs. 112 The FBOR provides that the following is a non-exhaustive list of satisfactory reasons a fire chief may be removed: 1) implementation of the goals or policies of the employing agency, 2) incompatibility of management styles, or 3) a change of administration. 113 It is not completely clear what type of hearing a fire chief is entitled to receive upon being discharged. In analyzing a virtually identical provision in the POBR, the California Court of Appeal set forth some guidelines. In Binkley v. City of Long Beach , 114 the court held that where a terminated employee serves at the pleasure of the city manager, and the scope of the administrative appeal hearing is not prescribed by personnel rules, the adequacy of the appeal procedure afforded must be measured against constitutional due process principles. The court held that because Binkley, the police chief, held his position at the pleasure of the city manager, the City did not bear the burden of proving just cause for termination, but was only required to prove an adequate opportunity for the Chief to make a record and seek to convince the employing agency to reverse its decision. The court also held that Binkley was not entitled to confront and cross-examine witnesses. Courts will likely follow the Binkley reasoning when determining how much process a fire chief is entitled to. C. U NIQUE I SSUES R EGARDING THE A PPLICATION OF THE FBOR 1. E VENTS AND C IRCUMSTANCES I NVOLVING THE P ERFORMANCE OF O FFICIAL D UTIES The FBOR’s introductory language explaining the Legislature’s intent in passing the Act states: a) firefighters are often called upon to render aid in hostile emergency situations rife with conflict and confrontation, 115 b) in providing lifesaving services to the public, firefighters are subject to numerous job safety procedures and protocols, which sometimes are compromised or altered, in a highly charged atmosphere of critical incident stressors, and c) “[f]irefighters who trust their instincts in these volatile emergency situations are deserving of due process rights and protections should those circumstances arise.” 116 The FBOR also states that its rights and protections only apply to a firefighter “during events and circumstances involving the performance of his or her official duties.” 117 This limiting language does not appear in the POBR. To date, there is only one case interpreting this provision of the FBOR. Seibert v. City of San Jose 118 held that an employee’s alleged sexual harassment of a coworker while on site at a

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