| 1 | A bill to be entitled |
| 2 | An act relating to firefighters; amending s. 112.82, F.S.; |
| 3 | requiring that all identifiable witnesses to a complaint |
| 4 | against a firefighter be interviewed, whenever possible, |
| 5 | prior to the interrogation of the accused firefighter; |
| 6 | requiring that the accused firefighter be furnished with |
| 7 | the complaint and witness statements prior to any |
| 8 | interrogation of that firefighter; providing for waiver of |
| 9 | the right to review witness statements by a firefighter; |
| 10 | prohibiting a firefighter from being threatened with |
| 11 | transfer, dismissal, or disciplinary action as an |
| 12 | inducement to answer any questions during an |
| 13 | interrogation; providing requirements with respect to the |
| 14 | provision of copies of recordings made during the formal |
| 15 | interrogation of a firefighter; prohibiting a firefighter |
| 16 | under interrogation from being subjected to visits by the |
| 17 | press or news media without his or her express written |
| 18 | consent; providing that certain statements made during an |
| 19 | interrogation are not admissible in any subsequent |
| 20 | judicial proceeding; prohibiting a firefighter from being |
| 21 | loaned or temporarily reassigned under certain |
| 22 | circumstances; prohibiting a firefighter from being |
| 23 | subjected to punitive action or denied promotion, or |
| 24 | threatened with such treatment, for exercising certain |
| 25 | rights; providing a statute of limitations for certain |
| 26 | acts, omissions, or other allegations of misconduct; |
| 27 | providing discipline notice requirements; providing |
| 28 | exceptions to the notice requirement; authorizing the |
| 29 | reopening of an investigation under certain circumstances; |
| 30 | providing a firefighter with certain rights relating to |
| 31 | his or her personnel file; requiring employers to permit |
| 32 | firefighters to inspect personnel files at reasonable |
| 33 | times and at reasonable intervals at the firefighter's |
| 34 | request; providing personnel file requirements; |
| 35 | authorizing a firefighter to request corrections to his or |
| 36 | her file; providing requirements for employers receiving |
| 37 | such requests; prohibiting a firefighter from being |
| 38 | compelled to submit to a lie detector test; prohibiting a |
| 39 | firefighter from being forced to disclose specified |
| 40 | personal information; providing liability; providing an |
| 41 | exception; providing a civil penalty; providing for |
| 42 | attorney's fees; creating s. 112.825, F.S.; providing |
| 43 | firefighters with certain rights relating to dismissal, |
| 44 | demotion, transfer, reassignment, or other personnel |
| 45 | action which might result in loss of pay or benefits or |
| 46 | which might otherwise be considered a punitive measure; |
| 47 | providing for the production of an investigative report |
| 48 | and supporting documents in a disciplinary case against a |
| 49 | firefighter to that firefighter prior to the imposition of |
| 50 | certain disciplinary actions; providing an effective date. |
| 51 |
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| 52 | Be It Enacted by the Legislature of the State of Florida: |
| 53 |
|
| 54 | Section 1. Section 112.82, Florida Statutes, is amended to |
| 55 | read: |
| 56 | 112.82 Rights of firefighters.-- |
| 57 | (1) Whenever a firefighter is subjected to an |
| 58 | interrogation, such interrogation shall be conducted pursuant to |
| 59 | the terms of this subsection section. |
| 60 | (a)(1) The interrogation shall take place at the facility |
| 61 | where the investigating officer is assigned, or at the facility |
| 62 | which has jurisdiction over the place where the incident under |
| 63 | investigation allegedly occurred, as designated by the |
| 64 | investigating officer. |
| 65 | (b)(2) A No firefighter may not shall be subjected to |
| 66 | interrogation without first receiving written notice of |
| 67 | sufficient detail of the investigation in order to reasonably |
| 68 | apprise the firefighter of the nature of the investigation. The |
| 69 | firefighter shall be informed beforehand of the names of all |
| 70 | complainants. All identifiable witnesses shall be interviewed, |
| 71 | whenever possible, prior to the beginning of the interrogation |
| 72 | of the firefighter. The complaint and all witness statements |
| 73 | shall be provided to the firefighter who is the subject of the |
| 74 | complaint prior to the beginning of any interrogation of that |
| 75 | firefighter. A firefighter, after being informed of the right to |
| 76 | review witness statements, may voluntarily waive the provisions |
| 77 | of this paragraph and provide a voluntary statement at any time. |
| 78 | (c)(3) All interrogations shall be conducted at a |
| 79 | reasonable time of day, preferably when the firefighter is on |
| 80 | duty, unless the importance of the interrogation or |
| 81 | investigation is of such a nature that immediate action is |
| 82 | required. |
| 83 | (d)(4) The firefighter under investigation shall be |
| 84 | informed of the name, rank, and unit or command of the officer |
| 85 | in charge of the investigation, the interrogators, and all |
| 86 | persons present during any interrogation. |
| 87 | (e)(5) Interrogation sessions shall be of reasonable |
| 88 | duration and the firefighter shall be permitted reasonable |
| 89 | periods for rest and personal necessities. |
| 90 | (f)(6) The firefighter being interrogated may shall not be |
| 91 | subjected to offensive language; threatened with transfer, |
| 92 | dismissal, or disciplinary action; or offered any incentive as |
| 93 | an inducement to answer any questions. |
| 94 | (g)(7) A complete record of any interrogation shall be |
| 95 | made, and if a transcript of such interrogation is made, the |
| 96 | firefighter under investigation shall be entitled to a copy |
| 97 | without charge. Such record may be electronically recorded. Upon |
| 98 | the request of the interrogated firefighter, a copy of any such |
| 99 | recording of the interrogation session must be made available to |
| 100 | the interrogated firefighter no later than 72 hours, excluding |
| 101 | holidays and weekends, following the interrogation. |
| 102 | (h)(8) An employee or officer of an employing agency may |
| 103 | represent the agency, and an employee organization may represent |
| 104 | any member of a bargaining unit desiring such representation in |
| 105 | any proceeding to which this part applies. If a collective |
| 106 | bargaining agreement provides for the presence of a |
| 107 | representative of the collective bargaining unit during |
| 108 | investigations or interrogations, such representative shall be |
| 109 | allowed to be present. |
| 110 | (i) The employer may not cause the firefighter under |
| 111 | interrogation to be subjected to visits by the press or news |
| 112 | media without his or her express written consent free of duress. |
| 113 | (j) A statement made during interrogation by a firefighter |
| 114 | under duress, coercion, or threat of punitive action is not |
| 115 | admissible in any subsequent judicial proceeding. This paragraph |
| 116 | does not limit the use of statements otherwise made by a |
| 117 | firefighter when the employing fire department is seeking civil |
| 118 | service sanctions against any firefighter, including |
| 119 | disciplinary action. |
| 120 | (2)(9) A No firefighter may not shall be discharged, |
| 121 | disciplined, demoted, denied promotion or seniority, |
| 122 | transferred, reassigned, or otherwise disciplined or |
| 123 | discriminated against in regard to his or her employment, or be |
| 124 | threatened with any such treatment as retaliation for or by |
| 125 | reason solely of his or her exercise of any of the rights |
| 126 | granted or protected by this part. |
| 127 | (3) A firefighter may not be loaned or temporarily |
| 128 | reassigned to a location or duty assignment if a firefighter in |
| 129 | his or her department would not normally be sent to that |
| 130 | location or would not normally be given that duty assignment |
| 131 | under similar circumstances. |
| 132 | (4) A firefighter may not be subjected to punitive action |
| 133 | or denied promotion, or threatened with such treatment, because |
| 134 | of the lawful exercise of the rights granted under this section |
| 135 | or the exercise of any rights under any existing administrative |
| 136 | grievance procedure. |
| 137 | (5) Punitive action or denial of promotion on grounds |
| 138 | other than merit may not be undertaken for any act, omission, or |
| 139 | other allegation of misconduct if the investigation of the |
| 140 | allegation is not completed within 1 year after discovery by the |
| 141 | employing fire department or licensing or certifying agency. |
| 142 | This 1-year limitation period applies only if the discovery of |
| 143 | the act, omission, or other allegation of misconduct occurred on |
| 144 | or after July 1, 2009. |
| 145 | (6)(a) If the employing department or licensing or |
| 146 | certifying agency determines that discipline may be taken, it |
| 147 | shall complete its investigation and notify the firefighter of |
| 148 | its proposed disciplinary action within 1 year, except in any of |
| 149 | the following circumstances: |
| 150 | 1. If the firefighter voluntarily waives the 1-year time |
| 151 | period in writing, in which case the time period shall be tolled |
| 152 | for the period of time specified in the written waiver. |
| 153 | 2. If the act, omission, or other allegation of misconduct |
| 154 | is also the subject of a criminal investigation or criminal |
| 155 | prosecution, in which case the time during which the criminal |
| 156 | investigation or criminal prosecution is pending shall toll the |
| 157 | 1-year time period. |
| 158 | 3. If the investigation is a multijurisdictional |
| 159 | investigation that requires a reasonable extension for |
| 160 | coordination of the involved agencies. |
| 161 | 4. If the investigation involves an employee who is |
| 162 | incapacitated or otherwise unavailable. |
| 163 | 5. If the investigation involves a matter in civil |
| 164 | litigation in which the firefighter is named as a party |
| 165 | defendant, in which case the 1-year time period shall be tolled |
| 166 | while that civil action is pending. |
| 167 | 6. If the investigation involves a matter in criminal |
| 168 | litigation in which the complainant is a criminal defendant, in |
| 169 | which case the 1-year time period shall be tolled during the |
| 170 | period of that defendant's criminal investigation and |
| 171 | prosecution. |
| 172 | 7. If the investigation involves an allegation of workers' |
| 173 | compensation fraud on the part of the firefighter. |
| 174 | 8. If a predisciplinary response or grievance procedure is |
| 175 | required or utilized, in which case the time for that response |
| 176 | or procedure shall not be governed or limited by this |
| 177 | subsection. |
| 178 | (b) If, after investigation and any predisciplinary |
| 179 | response or procedure, the employing department or licensing or |
| 180 | certifying agency decides to impose discipline, such department |
| 181 | or agency shall notify the firefighter in writing of its |
| 182 | decision to impose discipline within 30 days after its decision |
| 183 | but not less than 48 hours prior to imposing the discipline. |
| 184 | (7) Notwithstanding the 1-year time period specified in |
| 185 | subsection (5), an investigation may be reopened against a |
| 186 | firefighter if both of the following circumstances exist: |
| 187 | (a) Significant new evidence has been discovered that is |
| 188 | likely 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 |
| 191 | in the normal course of investigation without resorting to |
| 192 | extraordinary measures by the agency; or |
| 193 | 2. The evidence resulted from the firefighter's |
| 194 | predisciplinary response or procedure. |
| 195 | (8)(a) A firefighter may not have any comment adverse to |
| 196 | his or her interest entered in his or her personnel file, or any |
| 197 | other file used for any personnel purposes by his or her |
| 198 | employer, without the firefighter having first read and signed |
| 199 | the instrument containing the adverse comment indicating he or |
| 200 | she is aware of the comment. However, the entry may be made if |
| 201 | after reading the instrument the firefighter refuses to sign it. |
| 202 | Refusal to sign the instrument shall be noted on the instrument |
| 203 | and signed or initialed by the firefighter. |
| 204 | (b) A firefighter has 30 days within which to file a |
| 205 | written response to any adverse comment entered in his or her |
| 206 | personnel file. The written response shall be attached to, and |
| 207 | shall accompany, the adverse comment. |
| 208 | (9) Every employer shall, at reasonable times and at |
| 209 | reasonable intervals, upon the request of a firefighter, during |
| 210 | usual business hours, with no loss of compensation to the |
| 211 | firefighter, permit that firefighter to inspect personnel files |
| 212 | that are used or have been used to determine that firefighter's |
| 213 | qualifications for employment, promotion, additional |
| 214 | compensation, or termination or other disciplinary action. |
| 215 | (10) Each employer shall keep each firefighter's personnel |
| 216 | file or a true and correct copy thereof and shall make the file |
| 217 | or copy thereof available within a reasonable period of time |
| 218 | after a request therefor by the firefighter. |
| 219 | (a) If, after examination of the firefighter's personnel |
| 220 | file, the firefighter believes that any portion of the material |
| 221 | is mistakenly or unlawfully placed in the file, the firefighter |
| 222 | may request, in writing, that the mistaken or unlawful portion |
| 223 | be corrected or deleted. Any request made pursuant to this |
| 224 | paragraph shall include a statement by the firefighter |
| 225 | describing the corrections or deletions from the personnel file |
| 226 | requested and the reasons supporting such corrections or |
| 227 | deletions. A statement submitted pursuant to this paragraph |
| 228 | shall become part of the personnel file of the firefighter. |
| 229 | (b) Within 30 calendar days after receipt of a request |
| 230 | made pursuant to paragraph (a), the employer shall either grant |
| 231 | the firefighter's request or notify the firefighter of the |
| 232 | decision to refuse to grant the request. If the employer refuses |
| 233 | to grant the request, in whole or in part, the employer shall |
| 234 | state in writing the reasons for refusing the request, and the |
| 235 | written statement shall become part of the personnel file of the |
| 236 | firefighter. |
| 237 | (11) A firefighter may not be compelled to submit to a lie |
| 238 | detector test against his or her will. |
| 239 | (a) Disciplinary action or other recrimination may not be |
| 240 | taken against a firefighter refusing to submit to a lie detector |
| 241 | test. |
| 242 | (b) A comment may not be entered in the investigator's |
| 243 | notes or anywhere else that the firefighter refused to take, or |
| 244 | did not take, a lie detector test. |
| 245 | (c) Testimony or evidence to the effect that the |
| 246 | firefighter refused to take, or was subjected to, a lie detector |
| 247 | test is not admissible at a subsequent hearing, trial, or |
| 248 | proceeding, judicial or administrative. |
| 249 | (12) A firefighter may not be required or requested for |
| 250 | purposes of job assignment or other personnel action to disclose |
| 251 | any item of his or her property, income, assets, source of |
| 252 | income, debts, or personal or domestic expenditures, including |
| 253 | those of any member of his or her family or household, unless |
| 254 | such information is otherwise required to be furnished under |
| 255 | state law or obtained pursuant to court order. |
| 256 | (13) In addition to the relief afforded by this section, |
| 257 | upon a finding by a court that a fire department or its |
| 258 | employees, agents, or assigns, with respect to acts taken within |
| 259 | the scope of employment, maliciously violated any provision of |
| 260 | this section with the intent to harm the firefighter, the fire |
| 261 | department is, for each and every violation, liable for a civil |
| 262 | penalty not to exceed $25,000 to be awarded to the firefighter |
| 263 | whose right or protection was denied and for reasonable |
| 264 | attorney's fees as may be determined by the court. If the court |
| 265 | so finds, and there is sufficient evidence to establish actual |
| 266 | damages suffered by the firefighter whose right or protection |
| 267 | was denied, the fire department is also liable for the amount of |
| 268 | the actual damages. Notwithstanding these provisions, a fire |
| 269 | department may not be required to indemnify a contractor for the |
| 270 | contractor's liability pursuant to this subsection if there is, |
| 271 | within the contract between the fire department and the |
| 272 | contractor, an agreement to hold the fire department harmless |
| 273 | for the actions of the contractor. An individual is not liable |
| 274 | for any act for which a fire department is liable under this |
| 275 | section. |
| 276 | Section 2. Section 112.825, Florida Statutes, is created |
| 277 | to read: |
| 278 | 112.825 Notice of disciplinary action.-- |
| 279 | (1) A dismissal, demotion, transfer, reassignment, or |
| 280 | other personnel action which might result in loss of pay or |
| 281 | benefits or which might otherwise be considered a punitive |
| 282 | measure may not be taken against a firefighter unless the |
| 283 | firefighter is notified of the action and the reasons therefor |
| 284 | prior to the effective date of the action. |
| 285 | (2) Whenever a firefighter is subject to disciplinary |
| 286 | action consisting of suspension with loss of pay, demotion, or |
| 287 | dismissal, the firefighter shall, upon request, be provided with |
| 288 | a complete copy of the investigative report and supporting |
| 289 | documents and with the opportunity to address the findings in |
| 290 | the report with the employing agency prior to the imposition of |
| 291 | the disciplinary action consisting of suspension with loss of |
| 292 | pay, demotion, or dismissal. |
| 293 | Section 3. This act shall take effect July 1, 2009. |