BILL ANALYSIS Ó
SENATE COMMITTEE ON APPROPRIATIONS
Senator Ricardo Lara, Chair
2015 - 2016 Regular Session
SB 1163 (Leno) - Firefighters: rights and protections
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|Version: March 28, 2016 |Policy Vote: JUD. 6 - 0 |
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|Urgency: No |Mandate: Yes |
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|Hearing Date: April 25, 2016 |Consultant: Jolie Onodera |
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This bill meets the criteria for referral to the Suspense File.
Bill
Summary: SB 1163 would extend the existing rights and
protections under the Firefighters Procedural Bill of Rights Act
(FBOR) for all firefighters, including firefighter EMTs, to
include events and circumstances occurring off-duty, as
specified.
Fiscal
Impact:
FBOR expansion : Significant increase in ongoing local agency
costs, potentially state-reimbursable (General Fund), to
extend the existing FBOR protections for all firefighters to
include off-duty events and circumstances as enumerated under
the EMS Act. As the FBOR mandate is already established under
existing law to cover on-duty activities, any additional
potentially state-reimbursable costs attributable to this bill
would be those costs incurred above the existing mandate.
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For context, the magnitude of historical mandate reimbursement
claims paid under the Peace Officers Procedural Bill of Rights
(POBOR) averaged over $16 million for three years, with nearly
$77 million in deferred claims to be paid for previous years.
While the proportion of POBOR mandated costs specific to
off-duty activities is unknown, given the significant number
of firefighters and firefighter EMTs (over 40,000 statewide)
subject to the mandate, the potential fiscal impact statewide,
while unknown, could potentially be in excess of $1 million
annually.
Emergency Medical Services Authority (EMSA) : No fiscal
impact.
CAL FIRE : No fiscal impact, as CAL FIRE employees are
currently afforded with FBOR protections for events and
circumstances that occur both on- and off-duty.
Background: Existing law establishes the Firefighters Procedural Bill of
Rights Act (FBOR) which prescribes rights and due process
protections relating to political activity, interrogation,
punitive action, and administrative appeals. (Government Code §§
3250 et seq.)
For the purposes of FBOR, "firefighter" is defined as a
firefighter employed by a public agency, including, but not
limited to, any firefighter who is a paramedic or emergency
medical technician (EMT), irrespective of rank. However,
"firefighter" does not include a public safety officer
(protected under the Public Safety Procedural Bill of Rights) or
an inmate of a state or local correctional agency who performs
firefighting or related duties. (GC § 3251(a).)
The FBOR provides, among other provisions, for specific rights
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, as
follows:
To be questioned on duty at a reasonable hour.
To be informed in advance of the interrogation who will be
investigating the charges.
SB 1163 (Leno) Page 2 of
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To be informed of the nature of the investigation prior to the
interrogation.
To be questioned without offensive language or threatened with
punitive action.
To be provided with a formal grant of immunity from criminal
prosecution before being compelled to respond to incriminating
questions, as specified.
To have access to the recordings and transcripts of the
proceedings.
To be informed of his or her constitutional rights.
To have representation.
To appeal any discipline through a process conforming to the
Administrative Procedures Act or local grievance arbitration
appeals process.
To review and sign any adverse personnel comment prior to its
inclusion in the personnel file.
To submit a reply to the personnel comment.
To refuse a lie detector test. (GC §§ 3253-3257.)
Existing law provides that the rights and protections provided
under the FBOR only apply to a firefighter during events and
circumstances involving the performance of his or her official
duties. (GC § 3262.)
This bill seeks to extend the existing due process protections
under the FBOR for all firefighters to cover events and
circumstances that give rise to "disciplinary cause" pursuant to
the EMS Act. Through this extension, the protections of FBOR for
all firefighters would be expanded to include the events and
circumstances enumerated under the EMS Act, irrespective of
whether the events occur on- or off-duty.
Proposed Law:
This bill extends the existing rights and protections under
FBOR for all firefighters, including firefighter EMTs, to
include events and circumstances giving rise to "disciplinary
cause" under HSC § 1798.200 of the Emergency Medical Services
System and the Pre-hospital Emergency Medical Care Personnel Act
(EMS Act). "Disciplinary cause," pursuant to the EMS Act is
defined to cover the following acts that are considered
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substantially related to the qualifications, functions, and
duties of an EMT, and is evidence of a threat to the public
health and safety:
Fraud in the procurement of any EMT certificate or 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 pre-hospital personnel.
Conviction of any crime which is substantially related to
the qualifications, functions, and duties of pre-hospital
personnel.
Violating or attempting to violate directly or indirectly,
or assisting in or abetting the violation of, or conspiring
to violate, any provision of this division or the
regulations adopted by the authority pertaining to
pre-hospital 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.
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Unprofessional conduct exhibited by any of the following:
o The mistreatment or physical abuse of any patient
resulting from force in excess of what a reasonable and
prudent person trained and acting in a similar capacity
while engaged in the performance of his or her duties
would use if confronted with a similar circumstance.
o The failure to maintain confidentiality of patient
medical information, except as disclosure is otherwise
permitted or required by law.
o The commission of any sexually-related offense, as
specified.
Related
Legislation: AB 651 (Cooper) 2015 would allow a peace officer
or firefighter to have a representative present when questioned
by his or her employer regarding the investigation of another
peace officer or firefighter, if that interview may result in
punitive action against the officer who is not formally under
investigation, when representation is mutually agreed upon, as
specified. This bill is pending hearing in the Senate Committee
on Public Safety.
Prior Legislation: AB 2331 (Skinner) Chapter 465/2010 provided
that under FBOR, if an employing department is subject to an MOU
that provides for binding arbitration of administrative appeals,
the arbitrator or arbitration panel serves as the hearing
officer in accordance with the Administrative Procedures Act and
that hearing officer's decision is binding.
AB 220 (Bass) Chapter 591/2007 enacted the FBOR, which
prescribes rights to firefighters relating to political
activity, interrogation, punitive action, and administrative
appeals.
AB 2857 (Bass) 2006 would have expanded the Public Safety
Procedural Bill of Rights to apply to firefighters, as
specified. This bill was held on the Suspense File of the
Assembly Committee on Appropriations.
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AB 1411 (Longville) 2000 was nearly identical to AB 220 noted
above. This bill was held on the Suspense File of this
Committee.
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