17th Aug 2011
Response to Adverse Comments in Personnel File
Disciplinary action can take many forms when it comes to public safety employees. Sometimes it is not as heavy as a suspension without pay or a demotion. Often correction may come in the form of a counseling memo or a “documentation of verbal counseling”. Technically these “lower” actions do not legally qualify as formal discipline thereby triggering an employee’s right to a Skelly hearing or evidentiary appeal. However, the law does provide that your employer must (1) notify you that any “negative comment” is being placed in any file maintained by your employer for a personnel purpose and (2) that you have a right to respond to that negative comment in writing.
Government Code 3305 establishes that before any negative comment is placed in a public safety officer’s personnel file, or any file maintained for a personnel purpose, that the officer first be allowed to read and sign the negative comment. Government Code 3306 establishes that the officer has 30 days from the date of being served with notice of a “negative comment” to draft a written response to that comment which is to be included with the comment in the officer’s personnel file. Government Codes 3255 and 3256 provide identical protections to firefighters.
Just because you cannot formally appeal the placement of “paper” in your personnel file, you must be provided with notice prior to its placement and you must be given an opportunity to respond in writing. Taking advantage of this right is of significant importance to be certain that the contents of your personnel file (which are reviewed for performance evaluations and promotional considerations) are balanced and objective. If however you do not respond within 30 days of receiving notice, you will likely be barred from doing so.
Since employers may at times illegally place negative comments in your personnel file without your knowledge, it is a good idea to regularly request to review your personnel file’s contents. Both Government Codes 3306.5 and 3256.5 set forth the rights of both public safety officers and firefighters to inspect the contents of their personnel files, while on duty and without loss of compensation to the employee. Remember, it’s not just your official personnel file, but any file maintained by your employing city/department/county for a personnel purpose.