Court upholds public employee’s right to notice of adverse comments kept in any file used for personnel purposes

The Firefighters’ Procedural Bill of Rights includes a provision that no adverse comment can be kept in a personnel file or any other file used for personnel purposes unless it is signed by the firefighter, showing that the firefighter has had the opportunity to read it before it was entered in the file. 

In Poole v. Orange County Fire Authority, the official personnel files of employees were kept at the central headquarters of the Fire Authority.  However, at the fire station, the fire captain kept daily logs regarding the employees he supervised.  He used the daily logs in preparing yearly evaluations.  In the daily log he kept regarding Poole, the plaintiff in the case, the captain made negative notes without the plaintiff’s knowledge.  The court ruled that this violated the Firefighters’ Procedural Bill of Rights, because the statute covers the personnel file or “any other file used for any personnel purposes.” 

The court was not persuaded by the Fire Authority’s argument that the employee had the opportunity to review and respond to his personnel evaluations in his official personnel file.  The court observed that the supervisor kept the logs to help him remember events when preparing personnel evaluations at the end of the year; it would not be fair to expect the employee to remember the details of those events months later, when he was finally advised of the adverse comments in the personnel evaluation.

The right to notice before adverse material is placed in personnel records is not limited to firefighters alone.  The Public Safety Officers’ Procedural Bill of Rights has an identical provision as the one in the Firefighters’ Procedural Bill of Rights.  Similarly, Education Code section 44031 protects teachers and other school district employees.  Other categories of workers may be protected by similar provisions in their union contracts, or in other rules, such as personnel rules or civil service rules.

For more information, contact your labor law counsel. 

By Anne Yen | November 12, 2013

Legal Developments