January 2008
Firefighters’ Procedural Bill of Rights Act
On October 13, 2007, Governor Arnold Schwarzeneggar signed AB 220, the Firefighters Procedural Bill of Rights Act (FOBR). Similar to the Public Safety Officers’ Procedural Bill of Rights Act (POBR) for peace officers, the FOBR creates new rights for firefighters (who have successfully passed their probationary period) including the firefighter who is also a paramedic, or emergency medical technician employed by a public agency. The FOBR prescribes rights related to interrogation, punitive action, administrative appeals and political activity.
When a firefighter is under investigation for events or circumstances involved in the performance of his/her official duties, and subject to interrogation by his/her commanding officer, or any member designated by the employing department or licensing or certifying agency that could lead to punitive action, the interrogation shall take place under the following conditions:
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The interrogation shall be conducted at a reasonable hour, at a time when the firefighter is on duty unless an imminent threat to the safety of the public requires otherwise. The firefighter shall not lose compensation for any work missed as a result of the interrogation, and if done during his/her off-duty hours, he/she will be compensated accordingly.
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The firefighter will be notified of the person in charge of the investigation and all persons to be present at the interrogation. All questions asked of the firefighter will be asked by and through no more than two interrogators at one time.
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The firefighter shall be notified of the nature of the investigation prior to the interrogation.
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The firefighter being interrogated will be allowed reasonable breaks to attend to his /her own physical necessities.
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The firefighter will not be subjected to offensive language nor be promised a reward as an inducement to answering any question. The employer shall provide to, and obtain from, an employee a formal grant of immunity from criminal prosecution, in writing, before the employee may be compelled to respond to incriminating questions in an interrogation. The employer must also make the firefighter aware of the fact that granted the immunity, if he/she refuses to answer any questions directly related to the investigation or interrogation he/she may be subject to punitive action. Punitive action is defined as any action that may lead to dismissal, demotion, suspension, reduction in salary, written reprimand or transfer for purposes of punishment.
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The firefighter under interrogation shall not be subjected to visits by the press or news media nor shall the firefighter’s photograph, home address, or contact information be given to the press or news media without his/her written consent.
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The interrogation may be tape recorded. The firefighter being interrogated may bring his/her own recording device and record any and all aspects of the interrogation. He/she is entitled to a copy of the recording if further proceedings are contemplated or prior to any further interrogation. He/she is also entitled to any notes made by a stenographer, or to any reports or complaints made by investigators or other persons except those deemed confidential by law.
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If at any time prior to the interview or during the interview it is contemplated that he/she may be charged with a criminal offense, he/she will be immediately informed of his/her constitutional rights.
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Upon the filing of a formal written statement of charges or whenever the interrogation focuses on matters that could result in punitive action, the firefighter, at his/her request, shall have the right to have a representative of his or her choice present at all times during the interrogation. The representative cannot be someone who is also subject to the same investigation. The representative shall not be required by the employer to disclose any information obtained from the firefighter in non-criminal matters.
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A firefighter should not be reassigned to another location or duty assignment if his/her department would not normally send a firefighter to that location, or if a firefighter would not normally be given that duty assignment under similar circumstances.
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A firefighter should not be retaliated against for exercising his/her rights under this chapter.
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No punitive action or denial of promotion on the grounds other than merit shall be undertaken by the employer without providing the firefighter an opportunity for administrative appeal.
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The investigation must be completed within one year (certain exceptions apply) and if punitive action is proposed based on the results of the investigation; the firefighter must be notified within the one year period. The one year limitation only applies to discovery of act, omissions or misconduct occurring after January 1, 2008.
A firefighter shall not have any adverse comments entered into his/her personnel file without the firefighter having first read and signed the instrument indicating that he/she is aware of the comment. If he/she refuses to sign, the employer will note that on the document. The firefighter has thirty (30) days in which to respond to the adverse comment, and his/her rebuttal will be attached to the document containing the adverse comment.
Firefighters have the right to inspect their personnel file. If during the review he/she finds documents mistakenly or unlawfully placed in the personnel file, the firefighter may request in writing that the material be removed or corrected. The request must contain the reasons supporting the corrections or deletions. The employer must respond to the firefighter’s request within thirty (30) calendar days either granting the request in whole or in part or the reason for denying the request.
A firefighter shall not be ordered to take a lie detector test, nor can any disciplinary action or retaliation occur as a result of the firefighter exercising his/her right. No mention can be made of the firefighter’s refusal to take a lie detector test.
Firefighters shall not be required to disclose any item of their property, income, assets, source of income, debts, or personal or domestic expenditures, including those of their family or members of the household unless that information is required to be furnished under state law or obtained pursuant to a court order.
The employer may not search the firefighter’s locker or other space of storage that is assigned to him/her by the employer unless the employer has taken the following steps:
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In the firefighter’s presence, or
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With his/her consent, or
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Unless a search warrant has been obtained,
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Unless he/she has been notified that a search will be conducted.
Firefighters shall not be prohibited from engaging in, or be coerced or required to engage in political activity. A firefighter may seek election to serve as a member of a governing board of any school district, or any local agency where the firefighter is not employed, including but not limited to any city, county, special district or political subdivision.
In this article I have tried to emphasize the main areas which would be of interest to our members. It was not meant to be all-inclusive. If you have questions regarding the FOBR, please call your field representative to insure that your FOBR rights are protected.
Please feel free to call your field representative if you have any concerns regarding this issue. However, in the absence of time, follow the order, then contact your field representative and we can assist you if there is a grievance to be filed.
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