2007 California Government Code Chapter 9.6. Firefighters

CA Codes (gov:3250-3262)

3250.  This chapter shall be known, and may be cited, as the
Firefighters Procedural Bill of Rights Act.



3251.  For purposes of this chapter, the following definitions
apply:
   (a) "Firefighter" means any firefighter employed by a public
agency, including, but not limited to, any firefighter who is a
paramedic or emergency medical technician, irrespective of rank.
However, "firefighter" does not include an inmate of a state or local
correctional agency who performs firefighting or related duties or
persons who are subject to Chapter 9.7 (commencing with Section
3300). This chapter does not apply to any employee who has not
successfully completed the probationary period established by his or
her employer as a condition of employment.
   (b) "Public agency" has the meaning given that term by Section
53101.
   (c) "Punitive action" means any action that may lead to dismissal,
demotion, suspension, reduction in salary, written reprimand, or
transfer for purposes of punishment.



3252.  (a) Except as otherwise provided in Chapter 9.5 (commencing
with Section 3201), or whenever on duty or in uniform, no firefighter
shall be prohibited from engaging, or be coerced or required to
engage, in political activity.
   (b) A firefighter shall not be prohibited from seeking election
to, or serving as a member of, the governing board of a school
district, or any local agency where the firefighter is not employed,
including, but not limited to, any city, county, city and county, or
special district, or political subdivision thereof.



3253.  When any firefighter is under investigation and subjected to
interrogation by his or her commanding officer, or any other member
designated by the employing department or licensing or certifying
agency, that could lead to punitive action, the interrogation shall
be conducted under the following conditions:
   (a) The interrogation shall be conducted at a reasonable hour, at
a time when the firefighter is on duty, unless an imminent threat to
the safety of the public requires otherwise. If the interrogation
does occur during off-duty time of the firefighter being
interrogated, the firefighter shall be compensated for any off-duty
time in accordance with regular department procedures. The
firefighter's compensation shall not be reduced as a result of any
work missed while being interrogated.
   (b) The firefighter under investigation shall be informed, prior
to the interrogation, of the rank, name, and command of the officer
or other person in charge of the interrogation, the interrogating
officer, and all other persons to be present during the
interrogation. All questions directed to the firefighter under
interrogation shall be asked by and through no more than two
interrogators at one time.
   (c) The firefighter under investigation shall be informed of the
nature of the investigation prior to any interrogation.
   (d) The interrogating session shall be for a reasonable period
taking into consideration the gravity and complexity of the issue
being investigated. The person under interrogation shall be allowed
reasonable breaks to attend to his or her own personal physical
necessities.
   (e) (1) The firefighter under interrogation shall not be subjected
to offensive language or threatened with punitive action. A promise
of reward shall not be made as an inducement to answering any
question. The employer shall provide to, and obtain from, an employee
a formal grant of immunity from criminal prosecution, in writing,
before the employee may be compelled to respond to incriminating
questions in an interrogation. Subject to that grant of immunity, a
firefighter refusing to respond to questions or submit to
interrogations shall be informed that the failure to answer questions
directly related to the investigation or interrogation may result in
punitive action.
   (2) The employer shall not cause the firefighter under
interrogation to be subjected to visits by the press or news media
without his or her express written consent free of duress, and the
firefighter's photograph, home address, telephone number, or other
contact information shall not be given to the press or news media
without his or her express written consent.
   (f) A statement made during interrogation by a firefighter under
duress, coercion, or threat of punitive action shall not be
admissible in any subsequent judicial proceeding, subject to the
following qualifications:
   (1) This subdivision shall not limit the use of statements
otherwise made by a firefighter when the employing fire department is
seeking civil service sanctions against any firefighter, including
disciplinary action brought under Section 19572.
   (2) This subdivision shall not prevent the admissibility of
statements otherwise made by the firefighter under interrogation in
any civil action, including administrative actions, brought by that
firefighter, or that firefighter's exclusive representative, arising
out of a disciplinary action.
   (g) The complete interrogation of a firefighter may be recorded.
If a recording is made of the interrogation, the firefighter shall
have access to the recording if any further proceedings are
contemplated or prior to any further interrogation at a subsequent
time. The firefighter shall be entitled to a transcribed copy of any
notes made by a stenographer or to any reports or complaints made by
investigators or other persons, except those portions that are
otherwise required by law to be kept confidential. Notes or reports
that are deemed to be confidential shall not be entered in the
firefighter's personnel file. The firefighter being interrogated
shall have the right to bring his or her own recording device and
record any and all aspects of the interrogation.
   (h) If, prior to or during the interrogation of a firefighter, it
is contemplated that he or she may be charged with a criminal
offense, he or she shall be immediately informed of his or her
constitutional rights.
   (i) Upon the filing of a formal written statement of charges, or
whenever an interrogation focuses on matters that may result in
punitive action against any firefighter, that firefighter, at his or
her request, shall have the right to be represented by a
representative of his or her choice who may be present at all times
during the interrogation. The representative shall not be a person
subject to the same investigation.  The representative shall not be
required to disclose, or be subject to any punitive action for
refusing to disclose, any information received from the firefighter
under investigation for noncriminal matters.
   This section shall not be construed to apply to counseling,
instruction, or informal verbal admonishment by, or other routine or
unplanned contact with, a supervisor or any other firefighter.
   (j) A firefighter shall not be loaned or temporarily reassigned to
a location or duty assignment if a firefighter in his or her
department would not normally be sent to that location or would not
normally be given that duty assignment under similar circumstances.



3254.  (a) A firefighter shall not be subjected to punitive action,
or denied promotion, or be threatened with that treatment, because of
the lawful exercise of the rights granted under this chapter, or the
exercise of any rights under any existing administrative grievance
procedure.
   (b) Punitive action or denial of promotion on grounds other than
merit shall not be undertaken by any employing department or
licensing or certifying agency against any firefighter who has
successfully completed the probationary period without providing the
firefighter with an opportunity for administrative appeal.
   (c) A fire chief shall not be removed by a public agency or
appointing authority without providing that person with written
notice, the reason or reasons for removal, and an opportunity for
administrative appeal.
   For purposes of this subdivision, the removal of a fire chief by a
public agency or appointing authority, for the purpose of
implementing the goals or policies, or both, of the public agency or
appointing authority, or for reasons including, but not limited to,
incompatibility of management styles or as a result of a change in
administration, shall be sufficient to constitute "reason or reasons."

   Nothing in this subdivision shall be construed to create a
property interest, if one does not otherwise exist by rule or law, in
the job of fire chief.
   (d) Punitive action or denial of promotion on grounds other than
merit shall not be undertaken for any act, omission, or other
allegation of misconduct if the investigation of the allegation is
not completed within one year of discovery by the employing fire
department or licensing or certifying agency. This one-year
limitation period shall apply only if the discovery of the act,
omission, or other misconduct occurred on or after January 1, 2008.
If the employing department or licensing or certifying agency
determines that discipline may be taken, it shall complete its
investigation and notify the firefighter of its proposed disciplinary
action within that year, except in any of the following
circumstances:
   (1) If the firefighter voluntarily waives the one-year time period
in writing, the time period shall be tolled for the period of time
specified in the written waiver.
   (2) If the act, omission, or other allegation of misconduct is
also the subject of a criminal investigation or criminal prosecution,
the time during which the criminal investigation or criminal
prosecution is pending shall toll the one-year time period.
   (3) If the investigation is a multijurisdictional investigation
that requires a reasonable extension for coordination of the involved
agencies.
   (4) If the investigation involves an employee who is incapacitated
or otherwise unavailable.
   (5) If the investigation involves a matter in civil litigation
where the firefighter is named as a party defendant, the one-year
time period shall be tolled while that civil action is pending.
   (6) If the investigation involves a matter in criminal litigation
in which the complainant is a criminal defendant, the one-year time
period shall be tolled during the period of that defendant's criminal
investigation and prosecution.
   (7) If the investigation involves an allegation of workers'
compensation fraud on the part of the firefighter.
   (e) If a predisciplinary response or grievance procedure is
required or utilized, the time for that response or procedure shall
not be governed or limited by this chapter.
   (f) If, after investigation and any predisciplinary response or
procedure, the employing department or licensing or certifying agency
decides to impose discipline, that agency shall notify the
firefighter in writing of its decision to impose discipline within 30
days of its decision, but not less than 48 hours prior to imposing
the discipline.
   (g) Notwithstanding the one-year time period specified in
subdivision (d), an investigation may be reopened against a
firefighter if both of the following circumstances exist:
   (1) Significant new evidence has been discovered that is likely to
affect the outcome of the investigation.
   (2) One of the following conditions exists:
   (A) The evidence could not reasonably have been discovered in the
normal course of investigation without resorting to extraordinary
measures by the agency.
   (B) The evidence resulted from the firefighter's predisciplinary
response or procedure.


3254.5.  An administrative appeal instituted by a firefighter under
this chapter shall be conducted in conformance with rules and
procedures adopted by the employing department or licensing or
certifying agency that are in accordance with Chapter 5 (commencing
with Section 11500) of Part 1 of Division 3 of Title 2.



3255.  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.
However, the entry may be made if after reading the instrument the
firefighter refuses to sign it.  That fact shall be noted on that
document, and signed or initialed by the firefighter.



3256.  A firefighter shall have 30 days within which to file a
written response to any adverse comment entered in his or her
personnel file. The written response shall be attached to, and shall
accompany, the adverse comment.


3256.5.  (a) Every employer shall, at reasonable times and at
reasonable intervals, upon the request of a firefighter, during usual
business hours, with no loss of compensation to the firefighter,
permit that firefighter 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.
   (b) Each employer shall keep each firefighter's personnel file or
a true and correct copy thereof, and shall make the file or copy
thereof available within a reasonable period of time after a request
therefor by the firefighter.
   (c) If, after examination of the firefighter's personnel file, the
firefighter believes that any portion of the material is mistakenly
or unlawfully placed in the file, the firefighter may request, in
writing, that the mistaken or unlawful portion be corrected or
deleted. Any request made pursuant to this subdivision shall include
a statement by the firefighter describing the corrections or
deletions from the personnel file requested and the reasons
supporting those corrections or deletions.  A statement submitted
pursuant to this subdivision shall become part of the personnel file
of the firefighter.
   (d) Within 30 calendar days of receipt of a request made pursuant
to subdivision (c), the employer shall either grant the firefighter's
request or notify the officer of the decision to refuse to grant the
request. If the employer refuses to grant the request, in whole or
in part, the employer shall state in writing the reasons for refusing
the request, and that written statement shall become part of the
personnel file of the firefighter.



3257.  (a) A firefighter shall not be compelled to submit to a lie
detector test against his or her will.
   (1) Disciplinary action or other recrimination shall not be taken
against a firefighter refusing to submit to a lie detector test.
   (2) No comment shall be entered anywhere in the investigator's
notes or anywhere else that the firefighter refused to take, or did
not take, a lie detector test.
   (3) Testimony or evidence to the effect that the firefighter
refused to take, or was subjected to, a lie detector test shall not
be admissible at a subsequent hearing, trial, or proceeding, judicial
or administrative.
   (b) For the purpose of this section, "lie detector" means a
polygraph, deceptograph, voice stress analyzer, psychological stress
evaluator, or any other similar device, whether mechanical or
electrical, that is used, or the results of which are used, for the
purpose of rendering a diagnostic opinion regarding the honesty or
dishonesty of an individual.



3258.  A firefighter shall not be required or requested for purposes
of job assignment or other personnel action to disclose any item of
his or her property, income, assets, source of income, debts, or
personal or domestic expenditures, including those of any member of
his or her family or household, unless that information is otherwise
required to be furnished under state law or obtained pursuant to
court order.



3259.  A firefighter shall not have his or her locker or other space
for storage that may be assigned to him or her searched except in
his or her presence, or with his or her consent, or unless a valid
search warrant has been obtained or unless he or she has been
notified that a search will be conducted. This section shall apply
only to lockers or other space for storage that are owned or leased
by the employing department or licensing or certifying agency.



3260.  (a) It shall be unlawful for any employing department or
licensing or certifying agency to deny or refuse to any firefighter
the rights and protections guaranteed by this chapter.
   (b) The superior court shall have initial jurisdiction over any
proceeding brought by any firefighter against any employing
department or licensing or certifying agency for alleged violations
of this chapter.
   (c) (1) If the superior court finds that the employing department
or licensing or certifying agency has violated any of the provisions
of this chapter, the court 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 or
preliminary or permanent injunction prohibiting the employing
department or licensing or certifying agency from taking any punitive
action against the firefighter.
   (2) If the court finds that a bad faith or frivolous action or a
filing for an improper purpose has been brought pursuant to this
chapter, the court may order sanctions against the party filing the
action, the party's attorney, or both, pursuant to Sections 128.6 and
128.7 of the Code of Civil Procedure. Those sanctions may include,
but not be limited to, reasonable expenses, including attorney's
fees, incurred by a fire department as the court deems appropriate.
Nothing in this paragraph is intended to subject actions or filings
under this section to rules or standards that are different from
those applicable to other civil actions or filings subject to Section
128.6 or 128.7 of the Code of Civil Procedure.
   (d) In addition to the extraordinary relief afforded by this
chapter, upon a finding by a superior court that a fire department,
its employees, agents, or assigns, with respect to acts taken within
the scope of employment, maliciously violated any provision of this
chapter with the intent to injure the firefighter, the fire
department shall, for each and every violation, be liable for a civil
penalty not to exceed twenty-five thousand dollars (,000) to be
awarded to the firefighter whose right or protection was denied and
for reasonable attorney's fees as may be determined by the court. If
the court so finds, and there is sufficient evidence to establish
actual damages suffered by the firefighter whose right or protection
was denied, the fire department shall also be liable for the amount
of the actual damages. Notwithstanding these provisions, a fire
department may not be required to indemnify a contractor for the
contractor's liability pursuant to this subdivision if there is,
within the contract between the fire department and the contractor, a
"hold harmless" or similar provision that protects the fire
department from liability for the actions of the contractor. An
individual shall not be liable for any act for which a fire
department is liable under this section.



3261.  Nothing in this chapter shall in any way be construed to
limit the ability of any employing department, licensing or
certifying agency, or any firefighter to fulfill mutual aid
agreements with other jurisdictions or agencies, and this chapter
shall not be construed in any way to limit any jurisdictional or
interagency cooperation under any circumstances where that activity
is deemed necessary or desirable by the jurisdictions or agencies
involved.


3262.  The rights and protections described in this chapter shall
only apply to a firefighter during events and circumstances involving
the performance of his or her official duties.