BILL ANALYSIS Ó SENATE COMMITTEE ON APPROPRIATIONS Senator Ricardo Lara, Chair 2015 - 2016 Regular Session SB 1163 (Leno) - Firefighters: rights and protections ----------------------------------------------------------------- | | | | | | ----------------------------------------------------------------- |--------------------------------+--------------------------------| | | | |Version: March 28, 2016 |Policy Vote: JUD. 6 - 0 | | | | |--------------------------------+--------------------------------| | | | |Urgency: No |Mandate: Yes | | | | |--------------------------------+--------------------------------| | | | |Hearing Date: April 25, 2016 |Consultant: Jolie Onodera | | | | ----------------------------------------------------------------- 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. SB 1163 (Leno) Page 1 of ? 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 ? 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 SB 1163 (Leno) Page 3 of ? 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. SB 1163 (Leno) Page 4 of ? 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. SB 1163 (Leno) Page 5 of ? AB 1411 (Longville) 2000 was nearly identical to AB 220 noted above. This bill was held on the Suspense File of this Committee. -- END --