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.








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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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