HB 725

1
A bill to be entitled
2An act relating to firefighters; amending s. 112.82, F.S.;
3requiring that all identifiable witnesses to a complaint
4against a firefighter be interviewed, whenever possible,
5prior to the interrogation of the accused firefighter;
6requiring that the accused firefighter be furnished with
7the complaint and witness statements prior to any
8interrogation of that firefighter; providing for waiver of
9the right to review witness statements by a firefighter;
10prohibiting a firefighter from being threatened with
11transfer, dismissal, or disciplinary action as an
12inducement to answer any questions during an
13interrogation; providing requirements with respect to the
14provision of copies of recordings made during the formal
15interrogation of a firefighter; prohibiting a firefighter
16under interrogation from being subjected to visits by the
17press or news media without his or her express written
18consent; providing that certain statements made during an
19interrogation are not admissible in any subsequent
20judicial proceeding; prohibiting a firefighter from being
21loaned or temporarily reassigned under certain
22circumstances; prohibiting a firefighter from being
23subjected to punitive action or denied promotion, or
24threatened with such treatment, for exercising certain
25rights; providing a statute of limitations for certain
26acts, omissions, or other allegations of misconduct;
27providing discipline notice requirements; providing
28exceptions to the notice requirement; authorizing the
29reopening of an investigation under certain circumstances;
30providing a firefighter with certain rights relating to
31his or her personnel file; requiring employers to permit
32firefighters to inspect personnel files at reasonable
33times and at reasonable intervals at the firefighter's
34request; providing personnel file requirements;
35authorizing a firefighter to request corrections to his or
36her file; providing requirements for employers receiving
37such requests; prohibiting a firefighter from being
38compelled to submit to a lie detector test; prohibiting a
39firefighter from being forced to disclose specified
40personal information; providing liability; providing an
41exception; providing a civil penalty; providing for
42attorney's fees; creating s. 112.825, F.S.; providing
43firefighters with certain rights relating to dismissal,
44demotion, transfer, reassignment, or other personnel
45action which might result in loss of pay or benefits or
46which might otherwise be considered a punitive measure;
47providing for the production of an investigative report
48and supporting documents in a disciplinary case against a
49firefighter to that firefighter prior to the imposition of
50certain disciplinary actions; providing an effective date.
51
52Be It Enacted by the Legislature of the State of Florida:
53
54     Section 1.  Section 112.82, Florida Statutes, is amended to
55read:
56     112.82  Rights of firefighters.--
57     (1)  Whenever a firefighter is subjected to an
58interrogation, such interrogation shall be conducted pursuant to
59the terms of this subsection section.
60     (a)(1)  The interrogation shall take place at the facility
61where the investigating officer is assigned, or at the facility
62which has jurisdiction over the place where the incident under
63investigation allegedly occurred, as designated by the
64investigating officer.
65     (b)(2)  A No firefighter may not shall be subjected to
66interrogation without first receiving written notice of
67sufficient detail of the investigation in order to reasonably
68apprise the firefighter of the nature of the investigation. The
69firefighter shall be informed beforehand of the names of all
70complainants. All identifiable witnesses shall be interviewed,
71whenever possible, prior to the beginning of the interrogation
72of the firefighter. The complaint and all witness statements
73shall be provided to the firefighter who is the subject of the
74complaint prior to the beginning of any interrogation of that
75firefighter. A firefighter, after being informed of the right to
76review witness statements, may voluntarily waive the provisions
77of this paragraph and provide a voluntary statement at any time.
78     (c)(3)  All interrogations shall be conducted at a
79reasonable time of day, preferably when the firefighter is on
80duty, unless the importance of the interrogation or
81investigation is of such a nature that immediate action is
82required.
83     (d)(4)  The firefighter under investigation shall be
84informed of the name, rank, and unit or command of the officer
85in charge of the investigation, the interrogators, and all
86persons present during any interrogation.
87     (e)(5)  Interrogation sessions shall be of reasonable
88duration and the firefighter shall be permitted reasonable
89periods for rest and personal necessities.
90     (f)(6)  The firefighter being interrogated may shall not be
91subjected to offensive language; threatened with transfer,
92dismissal, or disciplinary action; or offered any incentive as
93an inducement to answer any questions.
94     (g)(7)  A complete record of any interrogation shall be
95made, and if a transcript of such interrogation is made, the
96firefighter under investigation shall be entitled to a copy
97without charge. Such record may be electronically recorded. Upon
98the request of the interrogated firefighter, a copy of any such
99recording of the interrogation session must be made available to
100the interrogated firefighter no later than 72 hours, excluding
101holidays and weekends, following the interrogation.
102     (h)(8)  An employee or officer of an employing agency may
103represent the agency, and an employee organization may represent
104any member of a bargaining unit desiring such representation in
105any proceeding to which this part applies. If a collective
106bargaining agreement provides for the presence of a
107representative of the collective bargaining unit during
108investigations or interrogations, such representative shall be
109allowed to be present.
110     (i)  The employer may not cause the firefighter under
111interrogation to be subjected to visits by the press or news
112media without his or her express written consent free of duress.
113     (j)  A statement made during interrogation by a firefighter
114under duress, coercion, or threat of punitive action is not
115admissible in any subsequent judicial proceeding. This paragraph
116does not limit the use of statements otherwise made by a
117firefighter when the employing fire department is seeking civil
118service sanctions against any firefighter, including
119disciplinary action.
120     (2)(9)  A No firefighter may not shall be discharged,
121disciplined, demoted, denied promotion or seniority,
122transferred, reassigned, or otherwise disciplined or
123discriminated against in regard to his or her employment, or be
124threatened with any such treatment as retaliation for or by
125reason solely of his or her exercise of any of the rights
126granted or protected by this part.
127     (3)  A firefighter may not be loaned or temporarily
128reassigned to a location or duty assignment if a firefighter in
129his or her department would not normally be sent to that
130location or would not normally be given that duty assignment
131under similar circumstances.
132     (4)  A firefighter may not be subjected to punitive action
133or denied promotion, or threatened with such treatment, because
134of the lawful exercise of the rights granted under this section
135or the exercise of any rights under any existing administrative
136grievance procedure.
137     (5)  Punitive action or denial of promotion on grounds
138other than merit may not be undertaken for any act, omission, or
139other allegation of misconduct if the investigation of the
140allegation is not completed within 1 year after discovery by the
141employing fire department or licensing or certifying agency.
142This 1-year limitation period applies only if the discovery of
143the act, omission, or other allegation of misconduct occurred on
144or after July 1, 2009.
145     (6)(a)  If the employing department or licensing or
146certifying agency determines that discipline may be taken, it
147shall complete its investigation and notify the firefighter of
148its proposed disciplinary action within 1 year, except in any of
149the following circumstances:
150     1.  If the firefighter voluntarily waives the 1-year time
151period in writing, in which case the time period shall be tolled
152for the period of time specified in the written waiver.
153     2.  If the act, omission, or other allegation of misconduct
154is also the subject of a criminal investigation or criminal
155prosecution, in which case the time during which the criminal
156investigation or criminal prosecution is pending shall toll the
1571-year time period.
158     3.  If the investigation is a multijurisdictional
159investigation that requires a reasonable extension for
160coordination of the involved agencies.
161     4.  If the investigation involves an employee who is
162incapacitated or otherwise unavailable.
163     5.  If the investigation involves a matter in civil
164litigation in which the firefighter is named as a party
165defendant, in which case the 1-year time period shall be tolled
166while that civil action is pending.
167     6.  If the investigation involves a matter in criminal
168litigation in which the complainant is a criminal defendant, in
169which case the 1-year time period shall be tolled during the
170period of that defendant's criminal investigation and
171prosecution.
172     7.  If the investigation involves an allegation of workers'
173compensation fraud on the part of the firefighter.
174     8.  If a predisciplinary response or grievance procedure is
175required or utilized, in which case the time for that response
176or procedure shall not be governed or limited by this
177subsection.
178     (b)  If, after investigation and any predisciplinary
179response or procedure, the employing department or licensing or
180certifying agency decides to impose discipline, such department
181or agency shall notify the firefighter in writing of its
182decision to impose discipline within 30 days after its decision
183but not less than 48 hours prior to imposing the discipline.
184     (7)  Notwithstanding the 1-year time period specified in
185subsection (5), an investigation may be reopened against a
186firefighter if both of the following circumstances exist:
187     (a)  Significant new evidence has been discovered that is
188likely to affect the outcome of the investigation.
189     (b)  One of the following conditions applies:
190     1.  The evidence could not reasonably have been discovered
191in the normal course of investigation without resorting to
192extraordinary measures by the agency; or
193     2.  The evidence resulted from the firefighter's
194predisciplinary response or procedure.
195     (8)(a)  A firefighter may not have any comment adverse to
196his or her interest entered in his or her personnel file, or any
197other file used for any personnel purposes by his or her
198employer, without the firefighter having first read and signed
199the instrument containing the adverse comment indicating he or
200she is aware of the comment. However, the entry may be made if
201after reading the instrument the firefighter refuses to sign it.
202Refusal to sign the instrument shall be noted on the instrument
203and signed or initialed by the firefighter.
204     (b)  A firefighter has 30 days within which to file a
205written response to any adverse comment entered in his or her
206personnel file. The written response shall be attached to, and
207shall accompany, the adverse comment.
208     (9)  Every employer shall, at reasonable times and at
209reasonable intervals, upon the request of a firefighter, during
210usual business hours, with no loss of compensation to the
211firefighter, permit that firefighter to inspect personnel files
212that are used or have been used to determine that firefighter's
213qualifications for employment, promotion, additional
214compensation, or termination or other disciplinary action.
215     (10)  Each employer shall keep each firefighter's personnel
216file or a true and correct copy thereof and shall make the file
217or copy thereof available within a reasonable period of time
218after a request therefor by the firefighter.
219     (a)  If, after examination of the firefighter's personnel
220file, the firefighter believes that any portion of the material
221is mistakenly or unlawfully placed in the file, the firefighter
222may request, in writing, that the mistaken or unlawful portion
223be corrected or deleted. Any request made pursuant to this
224paragraph shall include a statement by the firefighter
225describing the corrections or deletions from the personnel file
226requested and the reasons supporting such corrections or
227deletions. A statement submitted pursuant to this paragraph
228shall become part of the personnel file of the firefighter.
229     (b)  Within 30 calendar days after receipt of a request
230made pursuant to paragraph (a), the employer shall either grant
231the firefighter's request or notify the firefighter of the
232decision to refuse to grant the request. If the employer refuses
233to grant the request, in whole or in part, the employer shall
234state in writing the reasons for refusing the request, and the
235written statement shall become part of the personnel file of the
236firefighter.
237     (11)  A firefighter may not be compelled to submit to a lie
238detector test against his or her will.
239     (a)  Disciplinary action or other recrimination may not be
240taken against a firefighter refusing to submit to a lie detector
241test.
242     (b)  A comment may not be entered in the investigator's
243notes or anywhere else that the firefighter refused to take, or
244did not take, a lie detector test.
245     (c)  Testimony or evidence to the effect that the
246firefighter refused to take, or was subjected to, a lie detector
247test is not admissible at a subsequent hearing, trial, or
248proceeding, judicial or administrative.
249     (12)  A firefighter may not be required or requested for
250purposes of job assignment or other personnel action to disclose
251any item of his or her property, income, assets, source of
252income, debts, or personal or domestic expenditures, including
253those of any member of his or her family or household, unless
254such information is otherwise required to be furnished under
255state law or obtained pursuant to court order.
256     (13)  In addition to the relief afforded by this section,
257upon a finding by a court that a fire department or its
258employees, agents, or assigns, with respect to acts taken within
259the scope of employment, maliciously violated any provision of
260this section with the intent to harm the firefighter, the fire
261department is, for each and every violation, liable for a civil
262penalty not to exceed $25,000 to be awarded to the firefighter
263whose right or protection was denied and for reasonable
264attorney's fees as may be determined by the court. If the court
265so finds, and there is sufficient evidence to establish actual
266damages suffered by the firefighter whose right or protection
267was denied, the fire department is also liable for the amount of
268the actual damages. Notwithstanding these provisions, a fire
269department may not be required to indemnify a contractor for the
270contractor's liability pursuant to this subsection if there is,
271within the contract between the fire department and the
272contractor, an agreement to hold the fire department harmless
273for the actions of the contractor. An individual is not liable
274for any act for which a fire department is liable under this
275section.
276     Section 2.  Section 112.825, Florida Statutes, is created
277to read:
278     112.825  Notice of disciplinary action.--
279     (1)  A dismissal, demotion, transfer, reassignment, or
280other personnel action which might result in loss of pay or
281benefits or which might otherwise be considered a punitive
282measure may not be taken against a firefighter unless the
283firefighter is notified of the action and the reasons therefor
284prior to the effective date of the action.
285     (2)  Whenever a firefighter is subject to disciplinary
286action consisting of suspension with loss of pay, demotion, or
287dismissal, the firefighter shall, upon request, be provided with
288a complete copy of the investigative report and supporting
289documents and with the opportunity to address the findings in
290the report with the employing agency prior to the imposition of
291the disciplinary action consisting of suspension with loss of
292pay, demotion, or dismissal.
293     Section 3.  This act shall take effect July 1, 2009.


CODING: Words stricken are deletions; words underlined are additions.