BILL ANALYSIS
SENATE JUDICIARY COMMITTEE
Senator Ellen M. Corbett, Chair
2009-2010 Regular Session
AB 2331 (Skinner)
As Amended May 28, 2010
Hearing Date: June 22, 2010
Fiscal: No
Urgency: No
KB:jd
SUBJECT
Firefighters Procedural Bill of Rights Act
DESCRIPTION
This bill, sponsored by the California Professional
Firefighters, would provide that if provisions of the
Firefighters Procedural Bill of Rights Act pertaining to
administrative appeals are in conflict with grievance
arbitration provisions of a memorandum of understanding in
effect on and or after January 1, 2008, the memorandum of
understanding shall be controlling without further legislative
action.
BACKGROUND
In 2007, the Legislature enacted AB 220 (Bass, Chapter 591,
Statutes of 2007) which established the Firefighters Procedural
Bill of Rights Act (Act). In general, the Act specified the
procedures to be followed whenever a firefighter is subject to
investigation and interrogation for alleged misconduct which may
result in punitive action, such as dismissal, demotion,
suspension, salary reduction, written reprimand, transfer, or
even temporary reassignment. Pursuant to the Act, a firefighter
may bring suit in superior court for alleged violations of the
act, and obtain appropriate injunctive or other extraordinary
relief to remedy the violation and to prevent future violations.
(Gov. Code Sec. 3260.) In addition, punitive action or denial
of promotion on grounds other than merit may 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
(more)
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opportunity for administrative appeal. (Gov. Code Sec. 3254.)
The Act further provides that an administrative appeal
instituted by a firefighter under the Act shall be conducted in
conformance with rules and procedures adopted by the employing
department or licensing or certifying agency that are in
accordance with the Administrative Procedures Act. (Gov. Code
Sec. 3254.5.)
This bill seeks to correct apparent conflicts between the
provisions of the Act pertaining to administrative appeals and
existing memorandums of understanding.
CHANGES TO EXISTING LAW
Existing law , the Firefighters Procedural Bill of Rights Act
(Act), provides a set of rights and procedural protections to
specified firefighters. The act requires an administrative
appeal instituted by a firefighter under the act to be conducted
in conformance with rules and procedures adopted by the
employing department or licensing or certifying agency that are
in accordance with specified provisions of the Administrative
Procedure Act. (Gov. Code Sec. 3254.5.)
This bill would specify that if the above-described provision is
in conflict with grievance arbitration provisions of a
memorandum of understanding in effect on and or after January 1,
2008, the memorandum of understanding shall be controlling
without further legislative action.
COMMENT
1. Stated need for the bill
In support of this bill, the sponsor states:
Now that the Act has been in effect for a few years,
firefighter organizations and their employers are realizing
that the current application of the law may not clearly
provide for an alternative, collectively-bargained appeals
procedure. With that, it's evident that the provisions of the
Act governing the administrative appeals process are in need
of clarification - specifically, with respect to those
jurisdictions that have effectively mitigated past appeals
through a locally-adopted grievance arbitration procedure.
Rather than strapping these jurisdictions with the hefty cost
of revamping their appeals process to conform with the Office
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of Administrative Law rules under the Administrative
Procedures Act (APA) - costs that in many cases would be
prohibitive given the current economic climate - there is a
need to enable jurisdictions to utilize their existing,
effective grievance arbitration appeals process as an
acceptable alternative to the APA process.
2. Conflicts between Act and Memorandums of Understanding
In enacting AB 220, the Legislature intended to establish
procedures that would protect the due process rights of
firefighters in administrative appeals. However, as noted by
the sponsor, at the time AB 220 went into effect, many
firefighter organizations already had collectively bargained for
alternative grievance arbitration procedures. As currently
written, the Act does not clearly provide for such an
alternative established in a memorandum of understanding (MOU).
This bill would expressly provide that if the provisions of the
Act are in conflict with the grievance arbitration provisions of
an MOU in effect on or after January 1, 2008, then the MOU shall
be controlling.
Committee staff notes that the Act was substantially based on
the Public Safety Officers Procedural Bill of Rights Act
(POBOR), which does not contain a similar requirement that
administrative appeals be subject to the APA. Instead, the
POBOR provides that an administrative appeal under the POBOR
shall be conducted with rules and procedures adopted by the
local public agency. Thus, this bill would not create a
discrepancy in the administrative appeals rights afforded to
public safety officers and firefighters in each respective act.
While a number of organizations, including the California State
Association of Counties and League of Cities, were opposed to AB
220 and the original Act, it does not appear that this bill has
any opposition. However, the League of Cities has expressed
concerns that the term "grievance arbitration" is too narrow as
some cities have negotiated procedures in place that are not
referred to as such. This committee may wish to inquire of the
author whether the author's intent to is limit the application
of this bill to "grievance arbitration" or all negotiated
disciplinary or appeals processes so as to ensure that the
proper terminology is used. However, any clarifications should
not be so broad as to undermine the purpose of the POBOR.
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The League of Cities would like further clarification on whether
an MOU is in "effect" if it has already expired. Generally,
MOUs remain in effect even after they have expired until a new
MOU is entered into. (Gov. Code Sec. 3517.8.) Thus, an expired
MOU would be controlling and in effect for the purposes of this
bill until a new MOU is agreed upon.
Support : None Known
Opposition : None Known
HISTORY
Source : California Professional Firefighters
Related Pending Legislation : None Known
Prior Legislation : See Background.
Prior Vote : Not relevant. This bill was substantively amended
to address a different subject matter.
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