The Firefighters Procedural Bill of Rights Act (FBOR) outlines many rights to which you are entitled as a firefighter. Among the most often exercised rights revolve around administrative investigations, but the FBOR also discusses rights associated with political activity, personnel records, polygraph tests, and locker searches to name a few. The FBOR is codified at California Government Code sections 3250-3262.
If you are accused of misconduct or violating department policy and an administrative investigation is initiated, you have a right to receive written notice of the subject matter/nature of the investigation, the names of the interrogators, and the date, time, and location of the interview/interrogation. (Cal. Gov’t Code § 3253(b).) You have the right to get representation (a union rep or lawyer), but the chosen representative cannot be a witness or subject of the investigation. (Cal. Gov’t Code § 3253(i).) You are also entitled to have a pre-interview conference with your chosen representative and to tape-record the interrogation. (Ellins v. City of Sierra Madre (2016) 244 Cal.App.4th 445, 452; Cal. Gov’t Code § 3253(g).) If you choose to be represented by a member of your union, the union member cannot be questioned about anything received from you. (Cal. Gov’t Code § 3253(i).)
Your representative is more than a mere observer during the administrative interrogation. The representative must be given the opportunity to speak for you and assist you in answering questions. The role of the representative is to protect your rights, prevent illegal questioning, and clarify ambiguous questions/ambiguous responses. While your representative can participate during an administrative interrogation, your representative’s key role is to prepare you for your interview.
If you are the subject of an administrative investigation, you are not entitled to a copy of the complaint or any evidence the department has already gathered; however, that information/those documents must be provided upon request if discipline is proposed. If you are subjected to additional interviews during your disciplinary investigation, the department is required to provide you with the recordings from the earlier interrogation, as well as any reports or complaints made by the investigators or other persons and any transcribed stenographer notes. (Cal. Gov’t Code § 3253(g).)
If you are a probationary employee, you are viewed under the law as an “at will” employee with limited rights. Rights afforded to firefighters under the FBOR generally do not apply to probationary employees. A probationary employee may be released from employment for any reason whatsoever or for no reason at all, but cannot be released for an illegal reason (e.g., age, gender, religious beliefs, etc.). (Swift v. County of Placer (1984) 153 Cal.App.3d 209, 215.)
The administrative investigation notice defines the scope of the investigation. The department usually cites to the rules/policies allegedly violated by the firefighter under investigation, but the notice often includes a catch-all provision. Inquiries during the administrative interrogation into subjects that are reasonably related to the investigation and the alleged misconduct are permissible. Investigations can be related to allegations of misconduct while on-duty acting within the course and scope of employment, off-duty conduct with a nexus or connection to employment, and on-duty or off-duty criminal misconduct.
Many common complaints have a potential criminal aspect to them—e.g., writing a false report, theft, unsafe driving, sexual assault. An investigator must determine whether there is reasonable criminal exposure. If a firefighter under investigation is also being criminally prosecuted, he or she will not enjoy privileged communications with a labor representative regarding the criminal prosecution. However, communications with a lawyer will enjoy the status of being privileged whether the communications are related to the administrative investigation or the criminal prosecution.
Firefighters have the right to remain silent in a criminal investigation, but not in an administrative investigation. If the complaint/administrative investigation involves criminal issues, the investigator must give you a Miranda advisement before the administrative interview. (Lybarger v. City of Los Angeles (1985) 40 Cal.3d 822.) The investigator should then ask if you would like to answer the questions voluntarily, and you should say no. If the investigation involves criminal issues and the investigator does not give the Miranda advisement, you should invoke your right to remain silent. At that point, the investigator will order you to answer the questions under threat of insubordination (i.e., if you don’t answer my questions, you could be subject to discipline for insubordination) and ask if you will answer his/her questions now. You should then say yes and answer the investigator’s questions. Going through this process protects you should criminal charges be brought—your answers during the interview cannot be used against you in future criminal proceedings (unless you give answers while testifying in the criminal trial that are different from the answers you gave during the administrative interrogation). Even when an administrative investigation does not appear to involve criminal misconduct, a Lybarger warning is given by many departments at the beginning of the administrative interview to protect you just in case the investigation leads to criminal proceedings.
The administrative interrogation must be conducted at a reasonable time, preferably while you are on duty. However, if the interrogation takes place while you are off-duty, you are entitled to compensation. (Cal. Gov’t Code § 3253(a).)
There can be no more than two investigators asking questions during your IA interrogation. (Cal. Gov’t Code § 3253(b).) The investigators must not use offensive language, threaten you with punitive action, or promise you any rewards for answering any questions. (Cal. Gov’t Code § 3253(e).) However, if you refuse to answer any questions directly related to the investigation, the investigator must inform you that failure to respond could result in punitive action for insubordination, including termination. (Cal. Gov’t Code § 3253(e).) The investigators cannot provide your address, phone number, or photo to the media without your consent. (Cal. Gov’t Code § 3253(e).)
When interviewed as the subject of an administrative investigation or as a witness, you must always tell the truth. Sometimes a firefighter cannot remember what he or she saw, heard, or said during a particular incident. If you truly cannot remember something, it is perfectly acceptable and even preferable that you say you cannot remember. It is important that you understand the question, focus your answer to the question asked, and do not guess. If you have a vague recollection of something, you should begin an answer with language like “I believe” or “I think” or “if I remember correctly,” etc. Not telling the truth, withholding some of the truth, or attempting to give information when the answer should be “I don’t remember” could and likely will lead to additional discipline. If you are found to have been dishonest during an administrative investigation—whether as a subject or as a witness—a separate administrative investigation could be initiated against you and could result in termination.
The administrative investigation will conclude with one of four findings: sustained, not sustained, unfounded, or exonerated. Sustained means the preponderance of the evidence obtained during the investigation established that your actions constituted misconduct. Not sustained means there was insufficient evidence to prove or disprove misconduct. Unfounded means the acts that provided the basis for the investigation occurred, but the investigation revealed the acts were justified, lawful, or proper. Exonerated means the acts complained of did not occur.
If your department sustains the charges/allegations made against you and proposes discipline, you are entitled to a pre-disciplinary meeting commonly referred to as a Skelly Hearing. (This is a constitutional due process right, not a FBOR right.) You will be provided with all the evidence used to support the imposition of discipline, but you must request it. The purpose of a Skelly Hearing is to give you an opportunity to respond to the allegations and evidence, ask that no disciplinary action be imposed, and/or settle/resolve the matter (negotiate less severe discipline). It is an informal meeting, and you can provide a written statement rather than participate in an in-person meeting.
If your department wishes to take punitive action against you for sustained misconduct, it must provide you with a letter of intent to discipline or a notice of adverse action no later than one year after a person authorized to initiate an investigation discovered the misconduct. Your department is not required to impose the discipline within one year, just notify you of the proposed discipline. The one-year time limit to notify you of proposed discipline has many exceptions that could extend the deadline for months or years (e.g., if the misconduct is the subject of a criminal investigation/prosecution or the subject of civil litigation). (Cal. Gov’t Code § 3254(d).)
If your department moves forward with discipline after your Skelly Hearing, you have a constitutional right to a full and fair evidentiary hearing due to losing a property interest. Under the FBOR, this evidentiary hearing is described as an administrative appeal. (Cal. Gov’t Code § 3254.5.) The form of the administrative appeal depends on the language of your association’s Memorandum of Understanding with the department, the City Charter, City or County Personnel Rules, or other rules or regulations adopted by your department. (Cal. Gov’t Code § 3254.5.) However, the administrative appeal often takes the form of arbitration,, but could be a hearing in front of the State Personnel Board or some sort of committee run by your city. No matter where the administrative appeal takes place, the hearing will conducted by a neutral third-party that listens to witnesses testify, reviews documentary evidence, makes findings of fact, and writes a decision.
A firefighter cannot be prohibited from, coerced, or required to engage in political activity. (Cal. Gov’t Code § 3252.)
Your employer cannot put a document containing comments adverse to you in your personnel file unless it first gives you the opportunity to review and sign the document. Your signature indicates that you were made aware of the adverse comment. If you refuse to sign the document, your refusal will be noted on the document and you will put your initials next to that note. (Cal. Gov’t Code § 3255.) If an adverse comment goes into your personnel file, you have 30 days to file a written response. Your response will be attached to the adverse comment. (Cal. Gov’t Code § 3256.)
You have a right to inspect your personnel file, upon request, at reasonable intervals during regular business hours. Your employer must comply with the request within a reasonable period of time. If you believe any portion of the material in your personnel file was mistakenly or unlawfully placed there, you can request that those materials or portions of materials be corrected or deleted. Your written request must include a description of the corrections and deletions and the reasons for them. Your request will go into your personnel file. Your employer has 30 calendar days to either grant your request or notify you in writing that your request was denied, and state the reasons for the denial. Your employer’s written denial will go into your personnel file. (Cal. Gov’t Code § 3256.5.)
Lie Detector Tests
You have the right to refuse to submit to a lie detector test, which includes a polygraph, deceptograph, voice stress analyzer, psychological stress evaluator, or any other similar device used to make a determination regarding your honesty or dishonesty. Your refusal shall not be documented in an investigator’s notes or anywhere else, nor shall it be admissible in a hearing, trial, or proceeding whether judicial or administrative. (Cal. Gov’t Code § 3257.)
You cannot be required to disclose for purposes of job assignment your income, assets, finances, or sources of income. There are exceptions, however, when such information is required by law. (Cal. Gov’t Code § 3258.)
Searches of Your Locker/Storage Space
Your locker (or other space assigned to you for storage by your employer) cannot be searched except in your presence, with your consent, after obtaining a valid search warrant, or after notifying you that the search will be conducted. (Cal. Gov’t Code § 3259.)
Criminal searches must meet normal Fourth Amendment standards. Strip searches must be based on a reasonable suspicion that evidence will be found.
Consequences if Your Department Violates Your POBR Rights
If you think your employer violated your FBOR rights, you can file a lawsuit in superior court. If you prove your case, the court will render appropriate injunctive or other extraordinary relief to remedy the violation. If you can prove that your employer maliciously violated your FBOR rights with the intent to injure you, you will be entitled to up to $25,000 for each violation. (Cal. Gov’t Code § 3259.)