Firefighter Bill of Rights Act
Written by Gordon on January 4th, 2010
Gordon Graham here and of course it is time to say Happy New Year – and I certainly hope that your 2010 is a great year with health and happiness – and since you are on the Credit Union site – I trust that all your financial affairs will be wonderful. And along that line of thinking – let me briefly use this iteration of my writings for this site to talk about the finances of your organization – and for those of you who are retired there will not be a lot of stuff in this writing that you can use – but nonetheless it may be of some interest to you because my guess is that some of you had involvement in this issue over the last few decades.
And I must caution you who are reading this that I am not giving you any “legal advice” in this column – and why would you want that anyway – I went to night school – but rather I want to draw your attention to an issue that has popped up and prod you to seek the legal advice of your competent city attorney or county counsel and see what they have to say regarding this issue.
The issue I am speaking about is the Firefighter Bill of Rights Act that is codified in the California Government Code – and which was an issue for several decades since law enforcement personnel got the benefits of the Peace Officer Bill of Rights in 1976. And of course I will have to give you the background on this so that it all makes sense – and I have to have a certain number of words for this piece – so some background is in order.
For a long time some cops did some nasty things to suspects in criminal cases. You have watched TV over the years and while a lot of that is “Hollywood” – there were some behaviors that were wrong (but enough about Chicago PD) – and these behaviors caught the attention of the Courts and in 1964 or so our nation got the Supreme Court ruling regarding Miranda – and if you are interested in that case you can play the Wiki game and read all about it.
And (I am trying to be funny here) some of the cops who violated the Civil Rights of suspects ended up being promoted – and started treating the officers they were investigating inside their departments in the same illegal manner – with threats and abuse and other such nefarious behaviors and when the story about this mistreatment got out the Legislature of our great State said enough is enough – and in 1976 sworn personnel in law enforcement agencies got quite a bit of protection in 3303 of the Government Code.
I will brag just a bit here, but when the uniformed personnel in my former department (the CHP) got these protections – the Commissioner at the time, Glendon Craig (indeed a class act who later became the Sheriff of Sacramento County) extended those new protections to everyone in the CHP. This was a brilliant move for many reasons, but I am digressing here.
You who were active in the fire service did not get the same protections – and my guess is that back then (and I am not being rude here) IA’s (internal affairs investigations) in the fire service were few and far between – and for a bunch of reasons were not taken all that seriously and thus there were very few “aggrieved” persons who were the victims of aggressive supervisors during an IA – so no one viewed it as a problem.
And this is guaranteed to get me some hate mail, but so be it. I arrested a firefighter (and the employer is not important but it was a really big, and I mean really big municipal fire department in the LA area) in the 70’s for driving under the influence of PCP – and this guy had a lot of the stuff on him – and he asked me (no joke) to call his fire station and inform them that he would not be at work – and I did so and the Captain at the station got the word – and then I got a call back from the Captain – and the gist of the conversation was “thank God he was off duty” because if he was on duty there would have to be an investigation – and that was the end of that.
But over the years since then, as the fire service matured and recognized that some employees needed attention for some of the things they were doing (or not doing) and my guess is that some supervisors used tactics that were inappropriate – and the legislature caught wind of this and acted last year to create the FBOR – which was supposed to give personnel in the fire service the “same” rights as your brothers and sisters in law enforcement.
For the life of me I don’t understand why the Legislature did not do the “search/replace” thing with the POBR – and change cop to firefighter – but maybe that is not the way they do business in Sacramento – and that should not be a surprise based on some of the shenanigans going on up there today – but you got a slightly different group of protections.
Here is a significant difference between POBR and FBOR. One section of POBR (3303 –h) reads:
“If prior to or during the interrogation of a public safety officer it is deemed that he or she may be charged with a criminal offense, he or she shall be immediately informed of his or her constitutional rights.”
And we in cop world are familiar with this section and have understood the ramifications of that section since – well 1976. You can reference GC 3250 et seq. for your own read, but the FBOR says that before a firefighter can be compelled to answer an incriminating question, he or she not only must be immunized against use of incriminating answers in criminal prosecutions, but are perhaps even entitled to be immunized against any potential prosecution. The “different language” is in 3253(e)(1):
“The employer shall provided 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. Subject to that grant of immunity, a firefighter refusing to respond to questions or submit to an interrogation shall be informed that the failure to answer questions directly related to the investigation may result in punitive action.”
And as you can read as well as I can, this could lead to some truly ludicrous results in the pursuit of an Internal Affairs investigation – so as always make sure you consult with your competent counsel prior to undertaking one of these investigations – because in order to get this “grant of immunity from criminal prosecution” you are going to have to deal with the District Attorney and I don’t know one of them out of the fifty-eight in this State who will go along with this – so tread carefully and be aware of the risks attendant to this task.
And that brings this piece to a close. Thanks for reading and I look forward to any thoughts you might have about this issue. Take care and please work safely and again – Happy New Year!
Gordon Graham
Co-President, Lexipol
