Poole v. Orange County Fire Authority (Aug. 24, 2015, S215300) ___ Cal.4th ___ [2015 WL 4998965]
On August 24, 2015, the California Supreme Court issued a decision that validates the practice by many supervisors in the public sector of keeping informal “working files” as memory aids to be used in preparing employee evaluations and performance plans. Reversing a decision of the Court of Appeal, the Supreme Court held that the Firefighters Procedural Bill of Rights Act (“FFBOR,” Government Code section 3250 et seq.) does not, in effect, give firefighters unfettered access to the contents of such files.
Brett Culp, a fire captain with the Orange County Fire Authority, kept a “daily log” regarding each of the employees under his supervision, including Steve Poole, a firefighter. Consisting of computer entries and handwritten notes, Culp’s log noted any occurrences, positive and negative, that would assist him in writing a thorough and fair annual review. In preparing reviews and assessments of Poole’s performance, Culp used some of the incidents described in the log. From time to time, he also discussed Poole’s performance with a battalion chief, human resources personnel and agency attorneys; however, he never shared the log with them or allowed other employees to review it.
After Poole received a fairly detailed performance evaluation, his union representative demanded and received a copy of Culp’s “station file.” Poole subsequently asserted that the inclusion of negative comments in Culp’s log without Poole having been provided an opportunity to review them violated his rights under FFBOR. Poole asked that all negative comments be removed from the log and that all “personnel files” be made available to him for inspection. The agency denied the request, asserting that FFBOR did not apply to Culp’s “supervisory notes.”
Poole and his union sued. The trial court dismissed their case, but the Court of Appeal reversed. The key question for the Court of Appeal was whether the log was a “file used for . . . personnel purposes” under Government Code section 3255, a provision of FFBOR. The court reasoned that the log qualified as such a file because a substandard performance evaluation was based on adverse comments from the log and because Culp had orally revealed some of the contents of the log to his battalion chief.
Government Code section 3255 provides, in pertinent part, as follows:
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 SUPREME COURT’S DECISION
The Supreme Court analyzed whether FFBOR gives firefighters the right to review and respond to any negative comments in a supervisor’s “daily log,” where the log consists of notes that memorialize the supervisor’s thoughts and observations concerning an employee, and which the supervisor uses as a memory aid in preparing performance plans and reviews. On this core issue, the Court held that “because the log was not shared with or available to anyone other than the supervisor who wrote the log, it does not constitute a file ‘used for any personnel purposes by his or her employer’ and [Government Code] section 3255 does not apply.”
In reaching its conclusion, the Court read the key phrase in section 3255 – “any other file used for any personnel purposes by his or her employer” – in the context of neighboring provisions: section 3256, which entitles a firefighter to respond in writing to any adverse comment “entered in his or her personnel file” and section 3256.5, which gives firefighters the right, among other things, to inspect “personnel files that are used or have been used to determine that firefighter’s qualifications for employment, promotion, additional compensation, or termination or other disciplinary action.” The Court determined that these provisions, when read together, while guarding against an agency’s attempt to base personnel decisions on materials outside of its official personnel files, did not support the notion that FFBOR was intended to apply to a supervisor’s “working files.” (Notably, the Court suggested the analysis might differ if Culp had possessed the authority to take disciplinary action such that he could be considered as tantamount to the “employer.”)
Importantly, the Supreme Court distinguished a prior Supreme Court decision, Miller v. Chico Unified School Dist. (1979) 24 Cal.3d 703. In Miller, a school board had relied upon, in deciding to reassign an employee, memoranda containing derogatory information that had not been placed in the employee’s personnel file. Drawing on Miller, the Court cautioned that documents may be subject to disclosure under FFBOR even if not housed in an official personnel file if such documents (1) are maintained in such a way that they would be available to those making personnel decisions in the future (including prospective employers), or (2) are actually used by the employer in making a personnel decision, or both.
IMPACT AND PRACTICE POINTERS
- The issue of what constitutes a personnel file to which an employee must be provided access has been a perennial and vexing question. This decision is significant as it is widely understood that firefighters (and peace officers) are entitled to enhanced employment protections compared to their non-public safety counterparts. In all likelihood, this decision is equally applicable to Government Code section 3305, a parallel provision in the Public Safety Officers Procedural Bill of Rights Act (“PSOBOR”). Moreover, the underlying rationale would seemingly apply with equal, and probably greater force, in interpreting the statutory rights afforded to non-public safety employees, for instance under the Education Code or Labor Code.
- The Court emphasized the fact that Culp did not share or allow other employees to view the “daily log.” Accordingly, supervisors who keep “working files” should ensure that such files are “for their own eyes only” and kept in a secure location.
- The Court did not appear concerned that Culp had discussed some of the incidents recorded in his “daily log” with his own superiors prior to completing Poole’s evaluations and performance improvement plans. Thus, orally describing incidents to others in an organization on a need-to-know basis appears to be permissible, as where disclosure occurs in the context of seeking advice from superiors on how to address a performance issue.
- Regularly purging supervisors’ files is not just good housekeeping; it will also help to forestall an argument that the supervisor’s files may be available to those making personnel decisions in the future and thus should be treated as personnel files. Generally speaking, once the applicable evaluation cycle or performance plan has been completed, and necessary material has been incorporated into a formal document in the employee’s official personnel file, the underlying notes and log entries from the supervisor’s file should be purged.
- Supervisors should bear in mind that “working files” – while not necessarily obtainable through FFBOR or PSOBOR – may still be discoverable in the event of disciplinary action or litigation. Accordingly, “working files” should be accurate, timely and well-maintained. Moreover, a “working file” should note instances of both poor and outstanding performance.
- Finally, documentation of repeated or serious misconduct needs to be timely routed into the official personnel file, with the employee being given the right to respond.
For more information, contact Steve Shaw (firstname.lastname@example.org, 415-678-3836) or Ivan Delventhal (email@example.com, 415-848-7218).