EdLawConnect Blog

On February 26, 2014, the California Supreme Court granted a petition to review the recent Court of Appeal decision of Poole v. Orange County Fire Authority (2013) 221 Cal.App.4th 155.

In Poole, a firefighter relying on the Firefighters Procedural Bill of Rights Act convinced a California Court of Appeal to order an employer to strike daily logs of a firefighter’s poor performance that were maintained by his supervisor and used as part of his annual evaluation.

As part of his annual evaluation process, Poole’s supervisor made over one hundred handwritten and computerized notes, referred to the court and parties as “daily logs,” which documented the efficiency of Poole as well as other firefighters, in carrying out the duties of their job.  In Poole’s annual evaluation, his supervisor, relying largely on the daily logs, issued Poole a substandard evaluation and placed Poole on a performance improvement plan.

Poole and his union asked the court to order all adverse comments to be deleted from the daily logs pursuant to a provision of the Firefighters Procedural Bill of Rights Act that provides that adverse comments shall not be entered into a 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 . . .”  (Gov. Code, § 3255.)

As the Firefighters Procedural Bill of Rights Act is a recently enacted statutory scheme, the court looked for guidance to decisions interpreting the Public Safety Officers Bill of Rights Act, which governs California law enforcement employees and Education Code section 44031, which governs school district employee’s personnel files.  (Although Education Code section 44031 applies to all employees of a school district or county office of education, the Court of Appeal in its decision mistakenly stated that this statute applies only to “teachers.”)  Specifically, the court noted that Education Code section 44031 provides in part that “[i]nformation of a derogatory nature shall not be entered into an employee’s personnel records unless and until the employee is given notice and an opportunity to review and comment on that information.”

In analyzing Education Code section 44031, the court noted that in Miller v. Chico Unified School District (1979) 24 Cal.3d 703, a school principal had been reassigned to a classroom position after the district’s governing board reviewed 20 (twenty) confidential memoranda prepared by an Associate Superintendent that the principal was unaware of.  The California Supreme Court in Miller ultimately ordered the principal to be reinstated to his administrative position because the principal was not provided the opportunity to review or comment on the memoranda even though the district’s governing board made its decision based on these documents.

The potential problem for school administrators that would result if the Poole decision is upheld by the California Supreme Court is that many evaluations are made up of informal supervisor notes compiled during a validation period in preparation for an employee’s annual evaluation.  Such a ruling would prohibit a supervisor from keeping or maintaining any negative notes or comments or documents regarding an employee unless the employee was provided a prompt opportunity to review and comment upon each separate note or comment.  Such a requirement would make it practically procedurally impossible to have any negative comments or notes in an employee’s evaluation because each negative comment or note would trigger a separate due process procedure that requires that the employee be provided with each separate comment or note and an opportunity to respond to it.

Hopefully, the Supreme Court will conclude that an individual negative note or comment kept in an employee’s pending evaluation file does not trigger a separate due process requirement.  In Miller, the school administrator never saw the documents until he was demoted as a result of them, and the court concluded that the employee must be informed of the document(s) and be provided the opportunity to respond to them “within a reasonable time.”  This was entirely a different fact situation from Poole where the employee ultimately had the opportunity to comment and respond to the notes in his annual evaluation prior to any potential disciplinary action being taken against him.

We will let you know when the California Supreme Court issues its decision in this case.