Firefighter Engaged in Performance of Duties When Alleged Misconduct Occurred Was Entitled to FBOR Rights.

The Firefighters Procedural Bill of Rights Act ("FBOR"; Government Code sections 3250-3262) requires a fire department to provide a non-probationary firefighter with opportunity for an administrative appeal when taking punitive action. FBOR provides that the appeal must be heard in accordance with the Administrative Procedures Act section governing adjudicatory hearings, which includes a requirement that the hearing be conducted by a state Administrative Law Judge ("ALJ") unless a governing memorandum of understanding provides for binding arbitration.

Grant Siebert worked as a firefighter/paramedic for the San Jose Fire Department. On Thanksgiving Day 2008, a female high school student, "N.C.," brought a cookie pie to the firefighters working at Station 28. Seibert gave N.C., who was 16 at the time, a tour of the station and then took a photo of her next to a fire engine. He got her email address so he could send her the photo.

N.C. visited the station again a few weeks later. After leaving the station, N.C. emailed Seibert to inform him that she had injured her elbow while at the station that day. That began an exchange of increasingly risqué and suggestive emails between Seibert and N.C. N.C.'s father discovered she was exchanging emails with Seibert and took a printed copy of the emails to the fire station. He spoke to the Battalion Chief and asked him to remove Seibert from duty. The Department then moved Seibert to the Department's training center with fellow firefighter Leah Fazio. Fazio later alleged that Seibert had touched her in an unwelcome manner and had made multiple inappropriate remarks to her.

The City's Office of Employee Relations retained an attorney to investigate the allegations against Seibert. The investigator did not interview N.C., but instead relied on a summary of a recorded interview of her conducted by the police. The investigator found that Seibert had exchanged emails with N.C., but that the evidence was inconclusive whether Seibert knew N.C. was a minor. The investigator also found that Seibert had not used City-owned computers to communicate with N.C., but that the exchanges had occurred while Seibert was on duty. The investigator determined that Seibert had made statements which called his credibility into question, was evasive during interviews, was dishonest, and that he had violated the City's discrimination and harassment policy.

Siebert was terminated as a result of the investigator's findings. Seibert's counsel wrote the City Manager requesting arbitration and wrote to the Civil Service Commission requesting to appeal the discipline. The Commission heard the appeal and sustained Seibert's termination.

Seibert filed a petition for writ of administrative mandate alleging: (1) the Commission lacked jurisdiction because the City failed to file the notice of discipline on time; (2) the Commission failed to provide a fair hearing; and (3) the Commission abused its discretion. The Court issued a peremptory writ directing the City to set aside Seibert's termination and to reconsider the actions in light of the court's finding that there was insufficient evidence to establish the charges against Seibert. The City appealed and Seibert cross-appealed.

On appeal, the Court analyzed the specific allegations against Seibert. The Court held the trial court correctly concluded there was insufficient evidence to establish that Seibert's emails violated any City policies. However, the trial court had excluded transcripts of Fazio's testimony in the Commission hearing on the basis of hearsay. The Court determined that the trial court made a prejudicial error by refusing to consider Fazio's transcript testimony. The Court reversed the trial court's decision on that basis.

Seibert alleged that reconsideration of the Commission's decision must be governed by the FBOR, and that it must be heard by an ALJ or by a neutral arbitrator. The City argued that the charges at issue fell outside the FBOR because of section 3262, which provides that FBOR rights only apply to a firefighter during events involving the performance of official duties. The City alleged that Seibert's actions were not within the scope of his responsibilities. The Court determined that the proper inquiry was whether the firefighter was engaged in the performance of duties when the misconduct allegedly occurred. Seibert's alleged conduct with Fazio occurred at work and during working hours, so therefore those charges fell under FBOR. The Court declined to decide whether the allegations regarding Seibert's conduct with N.C. fell within the FBOR's reach since it was clear that Fazio's charges were covered by FBOR. The Court held that, since some of the charges fell under FBOR, all of the charges must be resolved in accordance with the FBOR.

Finally, the Court determined that Seibert did not have a right to binding arbitration because he did not invoke the provisions of FBOR. Seibert's counsel had previously requested arbitration, but Seibert had failed to comply with the MOU requirement that he provide documentation showing that the union had agreed to binding arbitration. The FBOR intends to preserve a firefighter's right to binding arbitration pursuant to a collective bargaining agreement and is an exception to the rule that all administrative appeals must be heard by an ALJ. Since the union's agreement was a contractual condition to binding arbitration, and Seibert had failed to get the union's agreement, the exception was not triggered and the ALJ must hear the further administrative proceedings.

Seibert v. City of San Jose (2016) 247 Cal.App.4th 1027.

NOTE:

The Court specifically noted that firefighters are not automatically entitled to binding arbitration of any disciplinary charge subject to the FBOR just because a firefighter's employment is governed by an MOU with a binding arbitration provision. The MOU itself must provide for binding arbitration of administrative appeals. This rule would not apply to cases under the Public Safety Officers Procedural Bill of Rights. Although similar to the FBOR, Government Code section 3304.5 only requires the administrative appeal be conducted in conformance with rules adopted by the agency.