Principles for Public Safety Employment

training facility where he was assigned was within the scope of his employment, and therefore he was entitled to FBOR protections with respect to that conduct. The Court declined to decide whether alleged misconduct of sending salacious emails to a minor, whom he met during a firehouse tour, during idle time in the firehouse, was within the scope of his duties, because he had been charged with both acts of misconduct in the same Notice of Intent LCW Practice Advisor

This language in the statute raises significant questions. Is a firefighter entitled to protection if he or she is on duty but engages in misconduct which is outside the scope of his or her duties? For example, workplace harassment is generally not within the scope of employment and therefore does not involve the performance of official duties. 119 However, the Court of Appeal has applied this provision of the FBOR differently. Similarly, if a firefighter were investigated for off-duty misconduct, e.g. drunk driving, would he or she be entitled to protection? Off-duty misconduct, by definition, does not relate to the performance of duties. Agencies are advised to consult with their chosen legal advisor to determine whether the Act applies in a particular set of circumstances.

2. I NVESTIGATIONS AND D ISCIPLINE BY L ICENSING /C ERTIFYING A GENCIES The FBOR not only applies to employers, but also applies to licensing and certifying agencies. The Act provides protection to firefighters who are investigated or disciplined by licensing/certifying agencies. 120 D. I NVESTIGATIONS OF E MERGENCY M EDICAL T ECHNICIANS California Health & Safety Code section 1798.200establishes requirements with regard to investigation of certain types of misconduct by an EMT-I or EMT-22. An employer of an EMT-I or EMT-II may conduct investigations, as necessary, and take disciplinary action against an EMT-I or EMT-II for certain enumerated violations: (1) Fraud in the procurement of any certificate or license under the Emergency Medical Services division of the Health and Safety Code; (2) Gross negligence; (3) Repeated negligent acts; (4) Incompetence; (5) Commission of any fraudulent, dishonest, or corrupt act substantially related to the qualifications, functions, and duties of prehospital personnel; (6) Conviction of any crime which is substantially related to the qualifications, functions, and duties of prehospital personnel; (7) Violating or attempting to violate directly or indirectly, or assisting in or abetting the violation of, or conspiring to violate, any provision of the Emergency Medical Services division of the Health and Safety Code; (8) Violating or attempting to violate any federal or state statute or regulation that regulates narcotics, dangerous drugs, or controlled substances; (9) Addiction to, the excessive use of, or the misuse of alcoholic beverages, narcotics, dangerous drugs, or controlled substances; (10) Functioning outside the supervision of medical control in the filed

Principles for Public Safety Employment ©2022 (s) Liebert Cassidy Whitmore 39