The most common call I get from clients is an inquiry into a pending misconduct investigation. Interestingly, after I hear the related circumstances about half of these matters result in a counseling memo/evaluation note or a Performance Improvement Plan (PIP), not discipline.
For an operational comparison, the agency was responding to a structure fire when what they had in front of them was a trashcan fire!
There is a common misconception in fire services, both with management and labor that documented counselling is punitive in nature. This unfortunately causes undo stress, wastes valuable resources, and frequently results in a missed opportunity to swiftly impact poor performance and/or behavior.
This misconception is not surprising. Most discipline policies were written well before the Firefighter’s Procedural Bill of Rights Act (FBOR) was enacted. After the Act, agencies scrambled to add language in order to assure compliance with the law. What was missed was the opportunity to clearly delineate non-disciplinary counseling/evaluation from punishment in those policies
Take a look at your “Discipline” policy. Is there currently language suggesting that counseling is part of the progressive disciplinary process? Why?
California case law is very clear that evaluations and evaluation notes (documented counseling) are NOT disciplinary in nature. Since they are not “punitive actions” there are no FBOR implications as long as these documents are properly prepared and made available to the employee for review/comment.
Case Law related to evaluations and evaluation notes:
- Turturici v. City of Redwood City (1987) 190 Cal.App. 3d 1447
- Adverse/negative comments in evaluations punitive actions.
- Otto v. LAUSD (2001) 89 Cal.App.4th 985
- It is imperative that those documents intended to provide advice, guidance and/or educational insight .
- Poole v OCFA (2013) Cal.App. 4th[1]
- Evaluation notes are a subject to review and comment by the employee.
Since evaluation notes are not “punitive,” the employee has no right to appeal. They do have the right to read the note and respond in writing if they choose, just as they can with an overall evaluation. The bottom line is the agency can put a date and time stamp when an employee was specifically told that they were not meeting expectations. In return, the employee can respond with any mitigating circumstances.
Performance based evaluation notes lead to more meaningful overall evaluations. They serve the intended purpose of encouraging good behavior and addressing poor performance in a timely and efficient manner.
So how do we overcome the misperception that evaluation notes (or any other form of documented counseling) is disciplinary in nature?
Remove any reference to counseling from your Discipline policy.
Consider a policy titled “Employee Performance” separated into three distinctly different sections. (You probably already have most of this language in place)
- Specifically describe your evaluation process including the use, maintenance and purging of evaluation notes and Performance Improvement Plans.
- Consider consolidating existing evaluation note formats into a single form. These forms can be used both to encourage good performance and correct poor performance.
- Include all criteria and forms of commendation.
- Include all pertinent information related to your disciplinary process in compliance with state law.
Policy review projects provide an excellent opportunity to form a stakeholder committee for the purposes of proposing revisions and then designing related training. This should not be an adversarial task. A clearly defined line between evaluation/counseling and punishment benefits both management and labor. The results will be less exposure to the stressful disciplinary process as well as timely, fair and accurate feedback on employee performance.
Eric Rosoff is a retired police lieutenant certified in personnel investigations. As the Executive Manager of the Career Survival Group Eric provides training and consultation to agencies across California. Please contact Eric at
[1] At the time of this article the Poole case is being determined by the California Supreme Court. Regardless of the outcome, the focus here is effective communication via evaluation notes. I contend that there is no downside to telling an employee what is expected and allowing that employee to review and respond.