| 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 | 
 | 
| 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)ANofirefighter may notshallbe 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 mayshallnot 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)ANofirefighter may notshallbe 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. |