BILL ANALYSIS
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|SENATE RULES COMMITTEE | AB 220|
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THIRD READING
Bill No: AB 220
Author: Bass (D)
Amended: 7/2/07 in Senate
Vote: 21
SENATE JUDICIARY COMMITTEE : 3-2, 7/10/07
AYES: Corbett, Kuehl, Steinberg
NOES: Harman, Ackerman
SENATE APPROPRIATIONS COMMITTEE : 10-7, 8/30/07
AYES: Torlakson, Cedillo, Corbett, Florez, Kuehl, Oropeza,
Ridley-Thomas, Simitian, Steinberg, Yee
NOES: Cox, Aanestad, Ashburn, Battin, Dutton, Runner,
Wyland
ASSEMBLY FLOOR : 74-0, 6/6/07 - See last page for vote
SUBJECT : Firefighters: Firefighters Procedural Bill of
Rights Act
SOURCE : California Professional Firefighters
DIGEST : This bill enacts the Firefighters Procedural
Bill of Rights Act, to mirror the Public Safety Officers
Procedural Bill of Rights Act that is applicable to public
safety officers.
ANALYSIS : Existing law establishes the Public Safety
Officers Procedural Bill of Rights (more commonly known as
POBOR, the Peace Officers Bill of Rights), that governs the
CONTINUED
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procedures for the investigation and interrogation of a
public safety officer for alleged misconduct, specifies the
rights of and remedies available to a public safety officer
being investigated or interrogated. Under POBOR, it is
unlawful for any public safety department or agent to deny
or refuse to a public safety officer the rights and
protections guaranteed to them by POBOR.
Except for the protections generally granted a public
employee by statute, local ordinances, case law, or through
the collective bargaining process, there is no
corresponding "procedural bill of rights" applicable to
firefighters.
This bill mirrors most, if not all, of the provisions in
POBOR and makes them applicable to firefighters, including
those who are paramedics or emergency medical technicians.
This bill:
1. Permits firefighters to engage in political activity or
seek elective office, subject to normal restrictions on
public officials engaging in political activity.
2. Confers on firefighters certain rights when under
investigation by a commanding officer, relating to time,
place and manner of interrogations.
3. Makes any statement by a firefighter during
interrogation, made under duress, coercion, or threat of
punitive action, inadmissible in any subsequent judicial
proceeding, with specified exceptions.
4. Provides the firefighter access to a recording of the
interrogation, unless the recording or portions of the
recording are required by law to be kept confidential,
or to record the interrogation on his/her own.
5. Requires that if at any point the firefighter would be
charged with a criminal offense, the firefighter be
informed of his/her constitutional rights.
6. Confers on the firefighter the right to be represented
by a person of his/her choice, whenever an interrogation
focuses on matters that may result in punitive action.
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7. Prohibits the loaning or temporary reassignment of the
firefighter to a location or duty assignment if a
firefighter under similar circumstances would not be
given that assignment.
8. Prohibits punitive action or denial of promotion of a
firefighter on the basis of other than merit, without
the opportunity for administrative appeal.
9. Prohibits removal of a fire chief without written notice
with reasons for removal and opportunity for
administrative appeal.
10.Except for specified circumstances, requires that no
punitive action against the firefighter be taken unless
the investigation is completed within one year (this
provision would apply only to acts, omissions, or
misconduct occurring on or after January 1, 2008).
11.Requires that if discipline is to be imposed on a
firefighter, notice of the decision be given at least 10
days prior but no later than two days prior to taking
action.
12.Provides for the reopening of an investigation under
specified circumstances, notwithstanding the one-year
requirement to complete an investigation.
13.Prohibits the placement of any adverse comments into a
firefighter's personnel file without the firefighter
reviewing and signing off on the comment and provide the
firefighter 30 days to respond to an adverse comment
placed in the file.
14.Permits the firefighter to inspect his/her personnel
files under specified conditions.
15.Provides that a firefighter shall not be compelled to
submit to a lie detector test and prohibit any notation
of a firefighter's refusal to submit to a lie detector
test in the firefighter's personnel file.
16.Prohibits any requirement that the firefighter disclose
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specified personal information unless required by state
law or by court order.
17.Prohibits the warrantless search of a firefighter's
locker or other personal storage space at work.
18.Provides that a firefighter may seek injunctive or other
extraordinary relief if these rights are violated.
19.Provides that if the court finds that a party acted in
bad faith or filed a frivolous action or filed an action
for an improper action, the court may impose sanctions,
including payment of reasonable expenses including
attorney's fees.
Existing law provides that a public employee is not liable
for injury caused by his/her instituting or prosecuting any
judicial or administrative proceeding within the scope of
employment, even if he/she acts maliciously and without
probable cause.
This bill provides that, where the employer or its agents
maliciously violated any of the provisions in the act with
intent to injure the firefighter, the court may impose a
civil penalty of up to $25,000 to be awarded to the
firefighter whose right was violated or denied, plus
reasonable attorney's fees. This will be in addition to
any actual damages suffered by the firefighter that the
court may find.
FISCAL EFFECT : Appropriation: No Fiscal Com.: Yes
Local: Yes
According to the Senate Appropriations Committee:
Fiscal Impact (in thousands)
Major Provisions 2007-08 2008-09
2009-10 Fund
Mandate expenses potentially in excess of
several General
million annually
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SUPPORT : (Verified 8/30/07)
California Professional Firefighters (source)
California Statewide Law Enforcement Association
CDF Firefighters
OPPOSITION : (Verified 8/30/07)
California Contract Cities Association
California State Association of Counties
Emergency Medical Directors Association of California
Emergency Medical Services Administrators Association of
California
League of California Cities
Regional Council of Rural Counties
Sierra-Sacramento Valley Emergency Medical Services Agency
ARGUMENTS IN SUPPORT : The California Professional
Firefighters (CPF) organization believes that the
Firefighters Bill of Rights that this bill enacts will
enhance protections for firefighters who are oftentimes
first-line emergency safety officers on the scene. The
CPF, the bill's sponsor, states:
"In the public's mind, public safety professionals are on
the same team. Every time a firefighter arrives on the
scene of an emergency, they are a part of a thin blue
line that protects our citizens. Firefighters often find
themselves in situations where their sworn duty commands
appropriate steps to ensure the safety of the public.
The reality is that on the street, there are situations
where the role of a firefighter intersects with that of a
peace officer.
"When providing life saving services to the public,
firefighters execute numerous job safety procedures and
protocols, which have the potential of being compromised
or altered in a highly charged atmosphere of critical
incident stressors. As a result, firefighters can be
subjected to investigations and interrogations that
ultimately lead to unwarranted punitive actions, such as
transfers, demotions or suspensions, without being
extended appropriate due process safeguards.
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"Not only do firefighters need to know their instructions
in the area of fire and emergency protection and
prevention, those firefighters who trust their instincts
in volatile emergency situations are deserving of the
same level of protection and due process rights as their
peace officer colleagues when administrative actions are
taken against them. Ultimately, firefighters need to
know that they have the weight of the law behind them.
Indeed the protection of property and the safety of the
public depend on the maintenance of reasonable and
consistent procedural protections."
ARGUMENTS IN OPPOSITION : The California State
Association of Counties calls this bill both unnecessary
and burdensome:
"Firefighters are not the subject of investigations and
interrogations to the same extent as peace officers.
County employees, including firefighter employees,
already have substantial procedural and due process
rights. In addition to property interest due process
rights and civil service or merit protections,
firefighter employees have collective bargaining rights
including due process procedures. ?This bill would impose
substantial and reimbursable state mandate costs on local
government. The Commission on State Mandates is in the
process of promulgating local agency parameters and
guidelines for the substantial costs associated with
POBOR. These same costs would result unnecessarily from
AB 220."
In fact, there are procedural safeguards in place for civil
service employees that are available to firefighters. The
California Supreme Court, in Skelly v. State Personnel
Board (1975) 15 Cal.3d 194, ruled that public employees are
entitled to a "disciplinary hearing," which means the
employee is entitled to a written notice of proposed
disciplinary action, the effective date of the action, the
reasons for the disciplinary action, the specific policy or
rule violated, and a statement advising the employee of the
right to respond orally or in writing. A Skelly hearing is
the backbone of public employees' procedural rights at
work.
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Additionally, opposition from emergency medical service
(EMS) agencies centers around the diminution of their
ability to provide impartial medical oversight of public
providers of emergency services (i.e., firefighters who are
paramedics or emergency medical technicians): "AB
220?poses major concerns for EMS agency administrators and
medical directors in relation to the medical control of
prehospital care personnel. EMS agencies ensure the safety
of the public by ensuring that the same standards for
medical oversight are applied equally to the public and
private sector. Further, EMS agencies already ensure due
process rights of those prehospital care medical personnel
whose medical performance is reviewed by the local EMS
agency medical director."
The League of California Cities contends that "AB 220's
attempt to emulate the [POBOR] and to garner the identical
conditions as Peace Officers has little merit?.Local
firefighters are not subject to the degree of
investigations and interrogations as peace officers.
Discipline actions cannot be brought against "any"
firefighter without due process. ?The bill also leaves some
unanswered questions. For example?Cities are perplexed
insofar as the reason the Legislature would want to
'interfere' with a local fire department's decision as to
how to allocate personnel. If an assignment or a
reassignment is done for punitive or retaliatory reasons,
then the firefighter would have recourse under one of the
following: MOU, Collective Bargaining agreement, or refer
to the city's ordinance in that area. ?Finally, AB 220
would impose substantial unfunded and reimbursable state
mandate costs on local government?"
ASSEMBLY FLOOR :
AYES: Adams, Aghazarian, Anderson, Arambula, Bass, Beall,
Benoit, Berg, Berryhill, Blakeslee, Brownley, Caballero,
Charles Calderon, Carter, Cook, Coto, De La Torre, De
Leon, DeSaulnier, Duvall, Dymally, Emmerson, Eng, Evans,
Feuer, Fuentes, Fuller, Galgiani, Garcia, Garrick,
Hancock, Hayashi, Hernandez, Horton, Houston, Huff,
Huffman, Jeffries, Jones, Karnette, Keene, Krekorian, La
Malfa, Laird, Leno, Levine, Lieber, Lieu, Ma, Maze,
Mendoza, Mullin, Nakanishi, Nava, Parra, Plescia,
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Portantino, Price, Richardson, Sharon Runner, Ruskin,
Salas, Saldana, Silva, Smyth, Solorio, Spitzer,
Strickland, Swanson, Torrico, Tran, Villines, Wolk, Nunez
NO VOTE RECORDED: Davis, DeVore, Gaines, Niello, Soto,
Walters
RJG:mw 8/30/07 Senate Floor Analyses
SUPPORT/OPPOSITION: SEE ABOVE
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