Public Sector Case Notes

CitationVol. 29 No. 6
Publication year2015
AuthorBy Stewart Weinberg and Kerianne Steele
Public Sector Case Notes

By Stewart Weinberg and Kerianne Steele

Stewart Weinberg, a 1960 graduate of Boalt Hall, is a shareholder of Weinberg, Roger & Rosenfeld in Alameda, a union-side labor law firm. Mr. Weinberg specializes in the representation of unions and employees in the public sector. Kerianne Steele also is a shareholder of the firm. She provides general representation to labor unions, primarily in the public sector.

Supervisor's Personal Notes Do Not Constitute "Personnel Purposes"

Poole v. Orange Cty. Fire Authority, 61 Cal. 4th 1378 (2015)

Under section 3255 of the Firefighters Procedural Bill of Rights Act (FPBRA), a fire fighter has the right to review and respond to any negative comment that is "entered in his or her personnel file, or any other file used for any personnel purposes by his or her employer." The supervisor in this case entered his "thoughts and observations" concerning employees in his daily log. The supervisor created a separate file for each of the employees whom he supervised. He included in that log any incident that would aid him in writing an annual review of each employee.

The firefighters union representative, after seeing plaintiff's annual evaluation, demanded that the supervisor provide him with a copy of the "station file." He was given a copy of the daily log regarding plaintiff. The plaintiff then complained to the Director of Human Resources that the inclusion of negative comments about him in the supervisor's daily log without providing him an opportunity to review those comments violated Cal. Government Code section 3255. He demanded that all negative comments be removed from the log. When his request was denied the plaintiff and his union filed a complaint in the superior court. The trial court denied relief, concluding that the supervisor's daily log was not subject to section § 3255.

Although the court of appeal reversed, the California Supreme Court affirmed the trial court's decision. The supreme court noted that the FPBRA does not define the phrase "used for any personnel purposes by his or her employer." The supreme court declined to hold that the language "used for any personnel purposes" was broad enough to include the supervisor's log which he used in the performance of his duties as a supervisor. (He did not share the log or make it available to anyone else.)

The court held that the language had to be read in its statutory context. In this case, that meant the legislature was not concerned with any and all files that might in some sense be connected with personnel matters. Rather, it was "specifically concerned with 'personnel files that are used or have been used to determine the fire fighter's qualification for employment, promotion, additional compensation, or termination or other disciplinary action.'" According to the court, a personnel file serves as a permanent record of the employee's employment and derogatory information placed in that record may be used against the employee long after the "informant" becomes unavailable. The court interpreted the language of section 3255 as describing any written or computerized record that, although not designated a personnel file, can be used for the same purposes as a file of the sort described in section 3256.5; that is, "as a record that may be used by the employer to make decisions about promotion, discipline, compensation, and the like." However, in the court's view, a supervisor's log that is used solely to help its creator remember past events does not fall within the scope of that definition.

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