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California School Fiscal Services

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Important Case Decision flies under the radar while we were focused on Vergara, -- could drastically impact school district employee evaluations- Author: Jackie McHaney

Posted on August 1, 2014 at 2:25 PM

With all of our attention recently focused on the outcome of the Vergara decision, the recent Court of Appeal decision in Poole v. Orange County Fire Authority (2013) 221 Cal.App.4th 155, flew so low under the radar that it almost went unnoticed.


In Poole, Steve Poole was a firefighter with the Orange County Fire Authority (Fire Authority) from 2008 to 2010. As part of the evaluation process, Poole’s supervisor had a practice of maintaining daily logs on a flash drive and in a folder kept at his desk, to enable him to refresh his memory and assist him in preparing written evaluations. Poole’s supervisor asserted that the daily logs included the recording of “any factual occurrence or occurrences that would aid … in writing a thorough and fair annual review.” In the case at bar, it was determined that Poole’s supervisor made over one hundred handwritten and computerized notes, which documented the efficiency of Poole as well as other firefighters in the department, in carrying out their duties. In 2009, Poole’s supervisor, relying largely on his daily logs to aid in the preparation of the written evaluation, issued Poole a substandard evaluation because his “work habits, personal relations, adaptability, and progress were unsatisfactory.” As a result of this substandard evaluation, Poole was placed on a performance improvement plan.


Unsatisfied with his substandard evaluation, Poole (with the assistance of his union) sought copies of the daily logs, which included more than 100 entries regarding Poole, many of which described areas in need of improvement. Poole was provided copies of these documents. Upon receipt of these documents, Poole requested that all adverse comments in the daily logs be removed because he never had any opportunity to respond prior to their use for personnel purposes in his performance evaluation and subsequent improvement plan. The Fire Authority refused to remove the comments, contending that, even though the notes were for personnel purposes, they were never “entered” into any file used for personnel purposes. Rather, the Fire Authority contended that Poole had the opportunity to respond to the comments in the evaluation, which would be placed in the personnel file.


Poole lost at the trial court level. The trial court denied the petition, likening the daily logs to “post-it” notes that were intended to remind the supervisor of events when he prepared the annual performance evaluation. The trial court also pointed out that the parties conceded that if Poole’s supervisor had written Poole’s annual performance evaluation from his memory and not based on written recollections in the daily logs, there would have been no lawsuit. The trial court therefore concluded the daily logs were not part of the personnel file and Poole had no right to respond to the adverse comments. Poole and the union appealed the trial court decision.


On appeal, Poole and his union asked the court to order all adverse comments to be deleted from the daily logs pursuant to a provision of the Firefighters Procedural Bill of Rights Act (FBOR) that provides that adverse comments shall not be entered into a personnel file “or any other file used for any personnel purposes by his or her employer, without the firefighter having first read and signed the instrument containing the adverse comment indicating he or she is aware of the comment . . .” (Gov. Code, § 3255.) Obviously, the purpose of this request is to eliminate the ability of the Fire Authority to rely on these prior acts as a factual basis for the substandard performance evaluation and placement on the improvement plan.


In its review, the Court of Appeal relied heavily on an old California Supreme Court case, Miller v. Chico Unified School District, which interpreted an Education Code section regarding a teacher’s right to review and comment on information of a “derogatory nature” before placed in their personnel file. In Miller v. Chico Unified School District (1979) 24 Cal.3d 703, a school principal had been reassigned to a classroom position after the district’s governing board reviewed 20 (twenty) confidential memoranda prepared by an Associate Superintendent that the principal was unaware of. The California Supreme Court in Miller ultimately ordered the principal to be reinstated to his administrative position because the principal was not provided the opportunity to review or comment on the memoranda even though the district’s governing board made its decision based on these documents.


The Court held that the interpretation of the Education Code in the Miller decision should be applied to sections 3255 and 3256 of the FBOR. It noted that Poole’s supervisor’s daily logs were used for making personnel decisions and affected Poole’s employment status. Poole received a substandard annual performance evaluation and placed on an improvement plan, based upon the information maintained in the daily logs. (This of course discounts any independent recollection the supervisor may have had). The Court concluded that the FBOR was violated because the daily logs were used for personnel purposes. The Court noted that the FBOR’s right to respond to adverse comments that may affect personnel decisions “is frustrated when the firefighter’s supervisor maintains a daily log containing adverse comments that may reach as far back as the day after the firefighter’s last yearly evaluation and the adverse comments are not revealed to the firefighter until the next yearly review, at which point the firefighter may respond to adverse comments in that review.”


On February 26, 2014, the California Supreme Court granted a petition to review the recent Court of Appeal decision. It is important to understand, however, that if the Poole decision is upheld by the California Supreme Court, it will be problematic for school districts because many supervisors rely on informal notes compiled during an evaluation period to complete a thorough and accurate annual evaluation at the end of the year. Such a ruling will: (a) prohibit a supervisor from keeping or maintaining any negative notes or comments or documents regarding an employee unless the employee was provided a prompt opportunity to review and comment upon each separate note or comment; and (b) will require supervisors to start documenting every incident deemed worthy of consideration for inclusion in an evaluation, provide each employee with a separate comment or note and an opportunity to respond to it, and then place all of these documents into their personnel file – which we know employees will not respond well too.


Hopefully, the Supreme Court will conclude that an individual negative note or comment kept in an employee’s pending evaluation file and kept solely for the purposes of aiding in recollection to ensure accuracy in the preparation of the annual evaluation does not trigger a separate due process requirement. In the alternative, we could add “Photographic” or ‘Eidetic” memory to the list of qualifications required for supervisors, if our only alternatives are to prepare evaluations solely from memory or increase our file cabinet budget because of the size our personnel files will need to be now to accommodate the additional documentation the Poole decision may end up requiring be maintained in the personnel file, in addition to the evaluation document that essentially summarizes the same.


Welcome back to the new school year!


Categories: Lawsuits, Leadership

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