Right to review supervisor comments

Do firefighters have the right to review and respond to comments in a supervisor’s daily log?

On August 24, 2015, the California Supreme Court decided whether a firefighter has the right to review and respond to negative comments in a supervisor’s daily log. In Steve Poole v. Orange County Fire Authority (August 24, 2015) S215300, the high court considered the Firefighters Procedural Bill of Rights Act, which gives firefighters certain job protections.

In this case, the supervisor kept a daily log regarding employees he supervised. He used the log to record notes that would aid him in writing annual reviews. The supervisor addressed the behavior mentioned in the log with employees, and if the behavior continued it could be included in a review.

The log concerning Mr. Poole included both positive and negative observations of Mr. Poole’s job performance. Some, but not all, of the notes in the log ended up in annual reviews or an assessment for a performance improvement plan that Mr. Poole went through. The supervisor discussed some of the matters in the daily log with his supervisor, human resources, and attorneys for the Fire Authority. But he did not share the log itself with anyone.

Mr. Poole reviewed his personnel file, which contained performance evaluations. The level of detail in the evaluation caused his union representative to demand the daily log. Mr. Poole eventually requested an order from a court that the Fire Authority remove all negative comments in the daily log and that he be given access to the log. The court denied Mr. Poole relief after concluding that the log was not covered by the Firefighters Procedural Bill of Rights Act. A court of appeal disagreed, concluding that Mr. Poole had the right to be given an opportunity to respond to the negative comments in the log before they were made known to the Fire Authority.

The California Supreme Court began with a review of the Act. The section at issue in the case (Government Code section 3255) reads: “[a] firefighter shall not have any comment adverse to his or her interest entered in his or her personnel file, or any other file used for any personnel purposes by his or her employer, without the firefighter having first read and signed the instrument containing the adverse comment indicating he or she is aware of the comment.” The firefighter also has the right to respond in writing to the adverse comment and have the response attached to the comment.

The high court focused on the phrase “used for any personnel purposes by his or her employer,” which is not defined in the law. The court reviewed the Act as a whole and determined that the California Legislature’s intent was to regulate documents that are used to determine qualifications for employment, promotion, additional compensation, and discipline or termination. A daily log that is used solely to help the creator remember past events is not one of these documents. Even if the notes from the log are used to write an evaluation that is placed in a personnel file, the notes themselves are not used by the employer to make decisions.

Applied to this case, the high court noted that the supervisor did not have the authority to take disciplinary action against Mr. Poole. Consequently, the supervisor’s daily log comments could not affect Mr. Poole unless they became part of an evaluation or some other document that was placed in Mr. Poole’s personnel file. The California Supreme Court concluded that any negative comments contained in the log that were not included in a performance review or performance improvement plan concerning Mr. Poole were not entered in a file “used for any personnel purposes by his or her employer.”

 

Posted by deanroyerlaw