BILL ANALYSIS Ó
SENATE JUDICIARY COMMITTEE
Senator Hannah-Beth Jackson, Chair
2015-2016 Regular Session
SB 1163 (Leno)
Version: March 28, 2016
Hearing Date: April 5, 2016
Fiscal: Yes
Urgency: No
TMW
SUBJECT
Firefighters: rights and protections
DESCRIPTION
This bill would extend the existing rights and protections under
the Firefighters Procedural Bill of Rights (FBOR) of a
firefighter who is a paramedic or emergency medical technician
(EMT firefighter) to events and circumstances giving rise to
disciplinary cause of the EMT firefighter pursuant to the
Emergency Medical Services System and the Prehospital Emergency
Medical Care Personnel Act (EMS Act).
BACKGROUND
The EMS Act provides for the licensure of paramedics (EMT-P) and
certification of emergency medical technicians (EMT-I, EMT-II)
(collectively, EMTs). The EMS Act specifies due process
requirements when a licensing or certifying entity, relevant
employer, or local emergency services agency (LEMSA) is
investigating or implementing any action for disciplinary cause
against EMTs. Due process procedures are followed pursuant to
the Administrative Procedures Act. However, EMT firefighters
qualify for enhanced rights and due process protections under
the FBOR when a relevant employer is investigating or
disciplining the EMT firefighter.
The FBOR was enacted by AB 220 (Bass, Chapter 591, Statutes of
2007) and prescribes rights to firefighters relating to
political activity, interrogation, punitive action, and
administrative appeals. The FBOR defines "firefighter" to mean
any firefighter employed by a public agency, including, but not
limited to, any firefighter who is an EMT, irrespective of rank,
excluding inmates, probationary employees, and public safety
officers. The FBOR also specifies procedures to be followed
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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. A firefighter can bring suit in superior court
for alleged violations of the FBOR and obtain appropriate
injunctive or other extraordinary relief to remedy the violation
and to prevent future violations.
In order to clarify the rights and due process protections
applicable in proceedings involving licensing and certification
of EMT firefighters, this bill would extend FBOR protections to
investigations and disciplinary actions initiated under the EMS
Act.
CHANGES TO EXISTING LAW
Existing law , the Firefighters Procedural Bill of Rights Act
(FBOR), prescribes rights to firefighters relating to political
activity, interrogation, punitive action, and administrative
appeals. (Gov. Code Sec. 3250 et seq.) The FBOR defines
"firefighter" to mean 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,
but does not include public safety officers or state or local
correctional agency inmates who perform firefighting or related
duties. (Gov. Code Sec. 3251(a).) The FBOR also defines
"punitive action" to mean any action that may lead to dismissal,
demotion, suspension, reduction in salary, written reprimand, or
transfer for purposes of punishment. (Gov. Code Sec. 3251(c).)
Existing law provides, among others, the following specific
rights to firefighters:
to be questioned on duty at a reasonable time (Gov. Code Sec.
3253(a));
to know who will be investigating the charges (Gov. Code Sec.
3253(b));
to know the nature of the investigation and the specific
charges (Gov. Code Sec. 3253(c));
to be questioned without offensive language or threatened with
punitive action (Gov. Code Sec. 3253(e)(i));
to record all proceedings and request transcripts of the
proceedings (Gov. Code Sec. 3253(g));
to representation (Gov. Code Sec. 3253(i));
to be reassigned only to another normal department job during
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any investigation (Gov. Code Sec. 3253(j));
to appeal any discipline through a process conforming to the
Administrative Procedures Act (APA) or local grievance
arbitration appeals process (Gov. Code Sec. 3254(b));
to review and sign any adverse personnel comment before it is
added to the personnel file (Gov. Code Sec. 3255);
to submit a reply to the personnel comment (Gov. Code Sec.
3256); and
to refuse a lie detector test (Gov. Code Sec. 3257).
Existing law makes the FBOR due process protections only
applicable to a firefighter during events and circumstances
involving the performance of his or her official duties. (Gov.
Code Sec. 3262.)
Existing law , the Emergency Medical Services System and the
Prehospital Emergency Medical Care Personnel Act (EMS Act),
provides for the licensing of a paramedic (EMT-P) and
certification of an emergency medical technician (EMT-I or
EMT-II). (Health & Saf. Code Sec. 1797 et seq.)
Existing law authorizes the medical director of the local
emergency services agency (LEMSA), after consultation with the
employer of an EMT-I or EMT-II, to temporarily suspend, prior to
a hearing, any EMT-I or EMT-II certificate or both EMT-I and
EMT-II certificates upon a determination that both of the
following conditions have been met: (1) the certificate holder
has engaged in acts or omissions that constitute grounds for
revocation of the EMT-I or EMT-II certificate; and (2)
permitting the certificate holder to continue to engage in the
certified activity without restriction would pose an imminent
threat to the public health or safety. (Health & Saf. Code Sec.
1798.200(a)(4).)
Existing law authorizes the Emergency Medical Services Authority
(Authority) to deny, suspend, or revoke any EMT-P license issued
under the EMS Act or place any EMT-P license or licenseholder on
probation upon the finding by the director of the occurrence of
an action, as specified, considered evidence of a threat to the
public health and safety, and proceedings against the EMT-P
license or licenseholder are required to be held in accordance
with the APA. (Health & Saf. Code Sec. 1798.200(b).)
Existing law authorizes an employer of an EMT to conduct
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investigations, as necessary, and take disciplinary action,
which may include denial, suspension, or revocation of a license
or certificate, against the EMT employee for the following
conduct, which are considered evidence of a threat to the public
health and safety:
fraud in the procurement of any EMT I or II certificate or
EMT-P license;
gross negligence;
repeated negligent acts;
incompetence;
the commission of any fraudulent, dishonest, or corrupt act
that is substantially related to the qualifications,
functions, and duties of prehospital personnel;
conviction of any crime which is substantially related to the
qualifications, functions, and duties of prehospital
personnel; the record of conviction or a certified copy of the
record shall be conclusive evidence of the conviction;
violating or attempting to violate directly or indirectly, or
assisting in or abetting the violation of, or conspiring to
violate, any provision of the EMS Act or regulations adopted
by the Authority pertaining to prehospital personnel;
violating or attempting to violate any federal or state
statute or regulation that regulates narcotics, dangerous
drugs, or controlled substances;
addiction to, the excessive use of, or the misuse of,
alcoholic beverages, narcotics, dangerous drugs, or controlled
substances;
functioning outside the supervision of medical control in the
field care system operating at the local level, except as
authorized by any other license or certification;
demonstration of irrational behavior or occurrence of a
physical disability to the extent that a reasonable and
prudent person would have reasonable cause to believe that the
ability to perform the duties normally expected may be
impaired; and
unprofessional conduct exhibited by the mistreatment or
physical abuse of any patient, as specified, the failure to
maintain confidentiality of patient information, or the
commission of any sexually related offense, as specified.
(Health & Saf. Code Sec. 1798.200(c).)
Existing law requires a LEMSA to decide, within 15 calendar
days, whether to serve an EMT-I or EMT-II certificate holder
with an accusation pursuant to the APA. (Health & Saf. Code
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Sec. 1798.200(a)(5).)
Existing law defines "disciplinary cause" to mean an act that is
substantially related to the qualifications, functions, and
duties of an EMT-I, EMT-II, or EMT-P and is evidence of a threat
to the public health and safety. (Health & Saf. Code Sec.
1798.200(e).)
Existing law , the APA, requires an accusation to be a written
statement of charges setting forth in ordinary and concise
language the acts or omissions with which the respondent is
charged, to the end that the respondent will be able to prepare
his or her defense, and requires the accusation to specify the
statutes and rules that the respondent is alleged to have
violated. (Gov. Code Sec. 11503(a).)
This bill would extend to EMT firefighters the FBOR rights and
due process protections to events and circumstances giving rise
to disciplinary cause under the EMS Act.
This bill would make various related legislative findings and
declarations.
COMMENT
1. Stated need for the bill
The author writes:
As enacted, FBOR included a limiting clause, which applies its
due process protections only in those events and circumstances
involving the performance of a firefighter's official duties.
While those certifying and licensing entities are also bound
by FBOR, the EMS Act in the Health and Safety Code reviews and
disciplines an EMS professional for an act that is
"substantially related to the qualifications, functions, and
duties of an EMT-I, EMT-II, or EMT-P and is evidence of a
threat to the public health and safety..." This small
variation in the language of the two statutes may result in a
small subset of offenses that may rise to the level of
disciplinary cause under the EMS Act but the firefighter would
not have access to the procedural protections of the FBOR.
This bill will amend [FBOR] to ensure that a firefighter-EMT
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or paramedic is afforded their due process in a consistent
manner. When providing lifesaving services, firefighters and
emergency medical personnel execute numerous job safety
procedures and protocols, which have the potential of being
compromised in a highly charged atmosphere of critical
incident stressors. Consequently, firefighters can be
subjected to inquiries, investigations and interrogations that
may ultimately lead to punitive action, such as transfers,
demotions or suspensions. SB 1163 will harmonize the
provisions of the FBOR to align more closely with the
provisions of the EMS Act, thereby ensuring that if a
firefighter is subject to discipline on the job, he or she
will in fact be protected by the due-process procedures
contained in the FBOR in all circumstances.
2. Extending FBOR due process protections to disciplinary actions
affecting EMT firefighter licensing and certification
Under the FBOR, firefighters, including paramedics and emergency
services technicians employed as firefighters, have enhanced
rights and due process protections regarding investigations and
disciplinary actions similar to those provided to public safety
officers under the Public Safety Officers Procedural Bill of
Rights. (Gov. Code Sec. 3250 et seq.) Separately, paramedics
and emergency services technicians are also subject to
investigations and disciplinary actions under the EMS Act, and
those disciplinary actions may evoke licensing or certifications
denial, revocation, or suspension.
However, the EMS Act does not explicitly provide the following
protections provided to firefighters who are subject to EMT
license or certificate suspension or revocation:
right to representation;
right to know who will be investigating the charges;
right to be questioned in a reasonable manner and not be
subject to bullying;
right to refuse a lie detector test;
right to be questioned on duty;
right to be reassigned only to another normal department job
during any investigation;
right to review and sign any adverse personnel comment before
it is added to the personnel file; and
right to submit a reply to the personnel comment.
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Accordingly, this bill would extend the rights and due process
protections under the FBOR to apply to investigations and
disciplinary actions against EMT firefighters initiated under
the EMS Act.
The author argues that employers of EMT firefighters and local
emergency medical services agencies (LEMSAs), which license and
certify EMT firefighters, are construing the protections under
the FBOR to only apply when the firefighter is "on duty." On
the other hand, the author notes that the EMS Act enumerates a
long list of "off-duty" conduct that subjects an EMT firefighter
to punitive licensing or certification discipline if the
licensing or certifying entity claims that the conduct is
substantially related to the qualifications, functions, and
duties of the EMT and considered evidence of a threat to public
safety. The California Professional Firefighters (CPF),
sponsor, argues that, as a result, "while EMT-certifying and
EMT-P licensing entities are bound by the FBOR in most
instances, the difference in the language of the FBOR clause
related to disciplinary cause as compared to the EMS Act results
in a small subset of offenses that may rise to the level of
disciplinary cause for which the firefighter is not granted
access to the FBOR procedural protections." The author argues
that this bill is necessary to ensure the uniform application of
FBOR due process protections when the EMT firefighter is subject
to punitive certification or licensure action in job-related
circumstances.
The author provides the following examples of off-duty conduct
that could subject an EMT firefighter to licensing or
certification disciplinary action:
a complaint is filed with a licensing or certifying entity
alleging that a paramedic or EMT is overdue on child support
payments;
a complaint is filed alleging that a paramedic or EMT was
involved in a domestic dispute;
a complaint is filed alleging the EMT was displaying signs of
addiction to pain medication prescribed for a job-related
injury; or
an employer is notified that an EMT or Paramedic was cited for
a DUI.
The author argues that EMT firefighters all too often respond to
the bad and the very ugly. Consequently, the author states that
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"the psychological stress of firefighting can follow a
firefighter when their 24 hour or 48 hour shift is over.
Firefighters regularly respond to stabbings, gun battles and
shootings, domestic violence and terrorist acts, automobile
accidents, airplane crashes and earthquakes, just to name a few.
They witness young children dying and grieving families. At
the same time, they are often bled or vomited on and it isn't
uncommon for them to be cursed at by the individual they are
attempting to help. While most survive the stressors of the
job, sadly, some see the stress manifest itself as emotional
trouble or prescription drug and alcohol abuse when off-duty.
In other, graver cases, the stress endured leads to suicide."
CPF notes that the rights and protections described in the FBOR
apply to a firefighter during events and circumstances involving
the performance of his or her official duties. However, in the
above described circumstances where the behaviors took place
off-duty, the licensing or certifying entity may choose to
investigate the behavior and consider punitive action against
the license or certificate. The author argues that such
investigations are not strictly required to abide by the
procedural rules found in the FBOR due to the discrepancy
between the scope of the FBOR and the scope of the EMS ACT.
Yet, any certification or licensure action taken against an EMT
firefighter for off-duty conduct will directly impact the status
of that firefighter on the job where certification or licensure
in good standing is required.
Accordingly, the author argues the bill is necessary to ensure
that, whenever an EMT firefighter may be subject to punitive
action that will impact his or her ability to perform
job-related duties, the procedural protections of the FBOR would
apply so investigations into alleged wrong-doing are conducted
fairly and credibly. In this way, the author argues that
appropriate discipline may be imposed and sustained, minimizing
the risk that the employer or licensing entity will face any
future liability and protecting potential future victims.
Notably, the California Code of Regulations, promulgated by the
Emergency Medical Services Authority, requires all
investigations involving EMTs who are employed by a public
safety agency as a firefighter to be conducted in accordance
with the FBOR. (Cal. Code Regs., tit. 22, Sec. 100211(b).)
Yet, those regulations only apply FBOR rights and protections to
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a firefighter during events and circumstances involving the
performance of his or her official duties, leaving out events
and circumstances affecting the licensing or certification of
the EMT firefighter. (Cal. Code Regs., tit. 22, Sec. 10211(a).)
In order to avoid confusion as to the applicability of the
special protections the Legislature has already enacted under
the FBOR to protect EMT firefighters, this bill would clarify
that FBOR rights and due process protections also apply to
investigations and disciplinary actions brought pursuant to the
EMS Act, which includes those investigations and disciplinary
actions affecting the licensing and certification of EMT
firefighters.
3. Opposition concerns
The Emergency Medical Services Administrators Association
(EMSAAC) and the Emergency Medical Directors Association of
California, Inc. (EMDAC), in opposition, state that this bill
would expand FBOR coverage to off-duty criminal arrests and
convictions, as well as actions that occur when a firefighter is
employed for a non-public safety agency, such as a hospital or
ambulance service. The opposition argues that this expansion of
FBOR to off-duty acts would diminish the ability of local EMS
agency medical directors and the State EMS Authority to protect
the public health and safety.
Further, the opposition states that the majority of off-duty
acts involve criminal convictions such as driving under the
influence, drug use, and domestic violence. The opposition
asserts that the timelines required by the FBOR may preempt
certifying and licensing agencies from being able to take action
due to the length of time required for some criminal proceedings
to be complete. The opposition also notes that, as the recent
investigation of the Cal Fire Academy in Ione has made clear,
the off-duty actions of firefighter paramedics and EMTs may pose
significant threats to public health and safety. The opposition
argues that the local EMS agency medical directors must have the
ability to protect patients that they believe SB 1163 erodes.
Lastly, the opposition notes that they were opposed to AB 220
which created the FBOR due to the inclusion of licensing and
certifying agencies within the legislation. Amending SB 1163 to
remove all references to licensing and certifying agencies from
FBOR would resolve EMSAAC's and EMDAC's concerns with the bill.
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Support : LIUNA Local 792; Orange County Professional
Firefighters Association, Local 3631
Opposition : Emergency Medical Directors Association of
California, Inc.; Emergency Medical Services Administrators
Association
HISTORY
Source : California Professional Firefighters
Related Pending Legislation : AB 651 (Cooper, 2015) would
authorize a firefighter or public safety officer who is a
witness to have representation in the interview, as specified,
in an investigation that focuses on matters that may result in
punitive action against the firefighter or public safety officer
who is not formally under investigation but is interviewed as a
witness in an investigation of another firefighter or public
safety officer. AB 651 is pending in the Senate Public Safety
Committee.
Prior Legislation :
AB 2331 (Skinner, Chapter 465, Statutes of 2010) provided that,
under the Firefighters Procedural Bill of Rights Act, if an
employing department is subject to a memorandum of understanding
that provides for binding arbitration of administrative appeals,
the arbitrator or arbitration panel serves as the hearing
officer in accordance with the Administrative Procedure Act and,
notwithstanding any other provision, that hearing officer's
decision is binding.
AB 220 (Bass, Chapter 591, Statutes of 2007) See Background;
Comment 3.
AB 2857 (Bass, 2006) would have expanded the Public Safety
Officers Procedural Bill of Rights to apply to firefighters, as
specified. AB 2857 died in the Assembly Appropriations
Committee.
AB 1411 (Longville, 2000) was almost identical to AB 220. AB
1411 died in the Senate Appropriations Committee.
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