BILL ANALYSIS
SENATE JUDICIARY COMMITTEE
Senator Ellen M. Corbett, Chair
2007-2008 Regular Session
AB 220 A
Assemblymember Bass B
As Amended July 2, 2007
Hearing Date: July 10, 2007 2
Government Code 2
GMO:rm 0
SUBJECT
Firefighters: Firefighters Procedural Bill of Rights Act
DESCRIPTION
The bill would enact the Firefighters Procedural Bill of
Rights Act, to mirror the Public Safety Officers Procedural
Bill of Rights Act (commonly known as POBOR) that is
applicable to public safety officers.
In general, the bill would specify the procedure to be
followed whenever a firefighter is subject to investigation
and interrogation for alleged misconduct which may result
in punitive action such as dismissal, demotion, suspension,
salary reduction, written reprimand, transfer, or even
temporary reassignment. A firefighter would be able to
bring suit in superior court for alleged violations of the
act, and obtain appropriate injunctive or other
extraordinary relief to remedy the violation and to prevent
future violations.
A malicious violation of the act, intended to injure the
firefighter, would subject the employer-agency to a civil
penalty of up to $25,000, in addition to actual damages if
any, and reasonable attorney's fees.
BACKGROUND
The Public Safety Officers Procedural Bill of Rights Act
(Government Code 3300 et seq.), commonly known as the
(more)
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Peace Officers Bill of Rights, or POBOR, specifies the
procedures to be followed whenever any public safety
officer is subject to investigation and interrogation for
alleged misconduct which may result in punitive action such
as dismissal, demotion, suspension, salary reduction,
written reprimand, or transfer. A public safety officer
may bring suit in superior court for alleged violations of
the Act, and may obtain appropriate injunctive or other
extraordinary relief to remedy the violation and to prevent
future violations of a similar nature (Government Code
3309.5).
AB 1411 (Longville, 2000) was a very similar bill to AB
220. It died in the Senate Appropriations Committee (it
was not heard by this committee). AB 2857 (Bass, 2006)
would have expanded categories of firefighters to give them
peace officer status (and thus gain protections under
POBOR). AB 2857 died in the Assembly Appropriations
Committee.
CHANGES TO EXISTING LAW
1. Existing law establishes the Public Safety Officers
Procedural Bill of Rights (more commonly known as POBOR,
the Peace Officers Bill of rights), that governs the
procedures for the investigation and interrogation of a
public safety officer for alleged misconduct, specifies
the rights of and remedies available to a public safety
officer being investigated or interrogated. (Government
Code 3300 et seq. All references are to the Government
Code unless otherwise indicated.) Under POBOR, it is
unlawful for any public safety department or agent to
deny or refuse to a public safety officer the rights and
protections guaranteed to them by POBOR. ( 3309.5(a).)
Except for the protections generally granted a public
employee by statute, local ordinances, case law, or
through the collective bargaining process, there is no
corresponding "procedural bill of rights" applicable to
firefighters.
The bill would mirror most, if not all, of the provisions
in POBOR and make them applicable to firefighters,
including those who are paramedics or emergency medical
technicians. This bill would:
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a) permit firefighters to engage in political activity
or seek elective office, subject to normal
restrictions on public officials engaging in political
activity;
b) confer on firefighters certain rights when under
investigation by a commanding officer, relating to
time, place and manner of interrogations;
c) make any statement by a firefighter during
interrogation, made under duress, coercion, or threat
of punitive action, inadmissible in any subsequent
judicial proceeding, with specified exceptions;
d) provide the firefighter access to a recording of
the interrogation, unless the recording or portions of
the recording are required by law to be kept
confidential, or to record the interrogation on his or
her own;
e) require that if at any point the firefighter would
be charged with a criminal offense, the firefighter be
informed of his or her constitutional rights;
f) confer on the firefighter the right to be
represented by a person of his or her choice, whenever
an interrogation focuses on matters that may result in
punitive action;
g) prohibit the loaning or temporary reassignment of
the firefighter to a location or duty assignment if a
firefighter under similar circumstances would not be
given that assignment;
h) prohibit punitive action or denial of promotion of
a firefighter on the basis of other than merit,
without the opportunity for administrative appeal;
i) prohibit removal of a fire chief without written
notice with reasons for removal and opportunity for
administrative appeal;
j) except for specified circumstances, require that no
punitive action against the firefighter be taken
unless the investigation is completed within one year
(this provision would apply only to acts, omissions,
or misconduct occurring on or after January 1, 2008);
aa) require that if discipline is to be imposed on a
firefighter, notice of the decision be given at least
10 days prior but no later than 2 days prior to taking
action;
bb) provide for the reopening of an investigation under
specified circumstances, notwithstanding the one-year
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requirement to complete an investigation;
cc) prohibit the placement of any adverse comments into
a firefighter's personnel file without the firefighter
reviewing and signing off on the comment and provide
the firefighter 30 days to respond to an adverse
comment placed in the file;
dd) permit the firefighter to inspect his or her
personnel files under specified conditions;
ee) provide that a firefighter shall not be compelled
to submit to a lie detector test and prohibit any
notation of a firefighter's refusal to submit to a lie
detector test in the firefighter's personnel file;
ff) prohibit any requirement that the firefighter
disclose specified personal information unless
required by state law or by court order;
gg) prohibit the warrantless search of a firefighter's
locker or other personal storage space at work;
hh) provide that a firefighter may seek injunctive or
other extraordinary relief if these rights are
violated; and
ii) provide that if the court finds that a party acted
in bad faith or filed a frivolous action or filed an
action for an improper action, the court may impose
sanctions, including payment of reasonable expenses
including attorney's fees.
2. Existing law provides that a public employee is not
liable for injury caused by his or her instituting or
prosecuting any judicial or administrative proceeding
within the scope of employment, even if he or she acts
maliciously and without probable cause. ( 821.6.)
This bill would provide that, where the employer or its
agents maliciously violated any of the provisions in the
act with intent to injure the firefighter, the court may
impose a civil penalty of up to $25,000 to be awarded to
the firefighter whose right was violated or denied, plus
reasonable attorney's fees. This would be in addition to
any actual damages suffered by the firefighter that the
court may find.
COMMENT
1. Stated need for the bill
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The California Professional Firefighters (CPF)
organization believes that the Firefighters Bill of
Rights that AB 220 would enact will enhance protections
for firefighters who are oftentimes first-line emergency
safety officers on the scene. The CPF, sponsor of AB
220, states:
In the public's mind, public safety professionals
are on the same team. Every time a firefighter
arrives on the scene of an emergency, they are a
part of a thin blue line that protects our
citizens. Firefighters often find themselves in
situations where their sworn duty commands
appropriate steps to ensure the safety of the
public. The reality is that on the street, there
are situations where the role of a firefighter
intersects with that of a peace officer.
When providing life saving services to the public,
firefighters execute numerous job safety
procedures and protocols, which have the potential
of being compromised or altered in a highly
charged atmosphere of critical incident stressors.
As a result, firefighters can be subjected to
investigations and interrogations that ultimately
lead to unwarranted punitive actions, such as
transfers, demotions or suspensions, without being
extended appropriate due process safeguards.
Not only do firefighters need to know their
instructions in the area of fire and emergency
protection and prevention, those firefighters who
trust their instincts in volatile emergency
situations are deserving of the same level of
protection and due process rights as their peace
officer colleagues when administrative actions are
taken against them. Ultimately, firefighters need
to know that they have the weight of the law
behind them. Indeed the protection of property
and the safety of the public depend on the
maintenance of reasonable and consistent
procedural protections.
AB 220 would confer upon firefighters substantially the
same procedural protections of POBOR, including the
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penalty provisions for violations. While POBOR has been
litigated in numerous cases over the years and justified
again and again by the special trust placed by the public
in their peace officers who enforce the law, the staff
has not found any published cases involving a firefighter
who claims his or her due process rights have been
violated by an interrogation or investigation for
misconduct while executing his or her job duties.
2. The purpose of POBOR: should firefighters get the
same protections?
The oft-cited case of Pasadena Police Officers Assn. v.
City of Pasadena (1990) 51 Cal.3d 564 articulated the
rationale behind passage of the Public Safety Officers
Procedural Bill of Rights Act (POBOR or Act). The court
stated:
Courts have long recognized that, while the
off-duty conduct of employees is generally of no
legal consequence to their employers, the public
expects peace officers to be "above suspicion of
violation of the very laws [they are] sworn?to
enforce." (Citations omitted.) Historically,
peace officers have been held to a higher standard
than other public employees, in part because they
alone are the "guardians of peace and security of
the community, and the efficiency of our whole
system, designed for the purpose of maintaining
law and order, depends upon the extent to which
such officers perform their duties and are
faithful to the trust reposed in them." (Citations
omitted.) To maintain the public's confidence in
its police force, a law enforcement agency must
promptly, thoroughly, and fairly investigate
allegations of officer misconduct; if warranted,
it must institute disciplinary proceedings.
Enacted in 1976, POBOR has generated a hefty body of case
law stating the purpose of the Act. The court in
California Correctional Peace Officers Assn. v. State of
California (2000) 98 Cal.App.4th 294, for example,
reiterated that the Act was adopted primarily as "a labor
relations statute, providing a catalog of basic rights
and protections that must be afforded all peace officers
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by the public entities which employ them." An earlier
decision, Binkley v. City of Long Beach (1993) 16
Cal.App.4th 1795, explains that:
[t]he Act bespeaks the Legislature's determination
that, because labor unrest and strikes produce
consequences extending far beyond local boundaries,
the maintenance of stable employment relations between
peace officers and their employers is a matter of
statewide concern. In summary, the Act: (1) secures
to public safety officers the right to engage in
political activity, when off duty and out of uniform,
and to seek election to or serve as a member of the
governing board of a school district; (2) prescribes
certain protections which must be afforded officers
during interrogations which could lead to punitive
action; (3) gives the right to review and respond in
writing to adverse comments entered in an officer's
personnel file; (4) provides that officers may not be
compelled to submit to polygraph examinations; (5)
prohibits searches of officers' personal storage
spaces or lockers except under specified
circumstances; (7) gives officers the right to
administrative appeal when any punitive action is
taken against them, or they are denied promotion on
grounds other than merit; and (8) protects officers
against retaliation for the exercise of any right
conferred by the Act. [Cites omitted.]
Under POBOR, a public safety officer alleging a violation
must file a complaint in superior court, and where the
court finds that a public safety department has violated
any provisions of the Act, it shall render appropriate
"injunctive or other extraordinary relief to remedy the
violation and to prevent future violations of a like or
similar nature including, but not limited to, the
granting of a temporary restraining order, preliminary,
or permanent injunction prohibiting the public safety
department from taking any punitive action against the
public safety officer."
In 2002, the Legislature amended POBOR to allow, in
addition to the extraordinary relief already in statute
then for the recovery by the public safety officer of
actual damages, exemplary damages, a civil penalty
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payable to the officer of up to $25,000, and attorney's
fees, against the public safety department for each
willful violation that was intended to injure the
officer.
AB 220 would mirror most if not all of the provisions
currently in POBOR, so there is no need to re-examine the
policy behind the procedural safeguards that are built
into the statutory scheme, and the penalties that could
be imposed for violations of the interrogated officer's
rights under the Act. Those have been vetted in past
legislation and litigated over several decades at all
levels of the state courts.
The question for the committee is whether or not the same
procedural safeguards should be given to firefighters.
In other words, do firefighters stand in the same shoes
as peace officers when it comes to exposure to charges of
misconduct in the course of discharging their duty to
respond to fires and other emergencies? If so, do the
firefighters need the same due process protections
provided to peace officers by POBOR?
As noted in the Background, a similar bill (AB 1411) was
introduced in 2000 and died in the Senate Appropriations
Committee on the grounds of substantial unfunded mandate
costs to local government. Last year, AB 2827 would have
raised some classes of firefighters to the level of peace
officer status, thus gaining POBOR protections. That
bill also failed in the Assembly Appropriations
Committee. This committee heard neither bill.
However, AB 220 is being heard in this committee because
the bill would, if enacted, confer specific due process
protections to firefighters because of a claimed special
standing, i.e., beyond the standing of other civil
servants of cities, counties, and the state.
3. Opponents contend the bill is unnecessary
The California State Association of Counties calls AB 220
both unnecessary and burdensome. "Firefighters are not
the subject of investigations and interrogations to the
same extent as peace officers. County employees,
including firefighter employees, already have substantial
procedural and due process rights. In addition to
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property interest due process rights and civil service or
merit protections, firefighter employees have collective
bargaining rights including due process procedures. ?This
bill would impose substantial and reimbursable state
mandate costs on local government. The Commission on
State Mandates is in the process of promulgating local
agency parameters and guidelines for the substantial
costs associated with POBOR. These same costs would
result unnecessarily from AB 220."
In fact, there are procedural safeguards in place for
civil service employees that are available to
firefighters. The California Supreme Court, in Skelly v.
State Personnel Board (1975) 15 Cal.3d 194, ruled that
public employees are entitled to a "disciplinary
hearing," which means the employee is entitled to a
written notice of proposed disciplinary action, the
effective date of the action, the reasons for the
disciplinary action, the specific policy or rule
violated, and a statement advising the employee of the
right to respond orally or in writing. A Skelly hearing
is the backbone of public employees' procedural rights at
work.
Additionally, opposition from emergency medical service
(EMS) agencies centers around the diminution of their
ability to provide impartial medical oversight of public
providers of emergency services (i.e., firefighters who
are paramedics or EMTs). "AB 220?poses major concerns
for EMS agency administrators and medical directors in
relation to the medical control of prehospital care
personnel. EMS agencies ensure the safety of the public
by ensuring that the same standards for medical oversight
are applied equally to the public and private sector.
Further, EMS agencies already ensure due process rights
of those prehospital care medical personnel whose medical
performance is reviewed by the local EMS agency medical
director."
The League of California Cities contends that "AB 220's
attempt to emulate the [POBOR] and to garner the
identical conditions as Peace Officers has little
merit?.Local firefighters are not subject to the degree
of investigations and interrogations as peace officers.
Discipline actions cannot be brought against "any"
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firefighter without due process. ?The bill also leaves
some unanswered questions. For example?Cities are
perplexed insofar as the reason the Legislature would
want to "interfere" with a local fire department's
decision as to how to allocate personnel. If an
assignment or a reassignment is done for punitive or
retaliatory reasons, then the firefighter would have
recourse under one of the following: MOU, Collective
Bargaining agreement, or refer to the city's ordinance in
that area. ?Finally, AB 220 would impose substantial
unfunded and reimbursable state mandate costs on local
government?"
Support: California Statewide Law Enforcement Association;
CDF Firefighters
Opposition: California State Association of Counties;
League of California Cities; Emergency Medical
Services Administrators Association of California
(EMSAAC); Sierra-Sacramento Valley Emergency
Medical Services Agency (S-SV EMS); Emergency
Medical Directors Association of California
(EMDAC); Regional Council of Rural Counties;
California Contract Cities Association
HISTORY
Source: California Professional Firefighters (sponsor)
Related Pending Legislation: None Known
Prior Legislation: AB 1411 (Longville, 2000) was an almost
identical bill. This bill died in the Senate
Appropriations Committee.
AB 2857 (Bass, 2006) would have expanded
POBOR coverage to certain firefighters. This
bill died in the Assembly Appropriations
Committee.
Prior Vote:Asm. P.E.R. & S.S. (Ayes 4, Noes 2)
Asm. Appr. (Ayes 12, Noes 5)
Asm. Flr. (Ayes 74, Noes 0)
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