Poole v. Orange County Fire Authority

Filed 8/24/15

IN THE SUPREME COURT OF CALIFORNIA

)

STEVE POOLE et al., )

) S215300

Plaintiffs and Appellants, )

) Ct.App. 4/3

v. ) G047691, G047850

)

ORANGE COUNTY FIRE AUTHORITY, ) Orange County Super. Ct.

) No. 30-2011-00463651

Defendant and Respondent. )

____________________________________)

Under the Firefighters Procedural Bill of Rights Act (Gov. Code, § 3250 et

seq.),1 a firefighter has the right to review and respond to any negative comment

that is “entered in his or her personnel file, or any other file used for any personnel

purposes by his or her employer.” (§ 3255.) This case presents the question

whether section 3255 gives an employee the right to review and respond to

negative comments in a supervisor‟s daily log, consisting of notes that

memorialize the supervisor‟s thoughts and observations concerning an employee,

which the supervisor uses as a memory aid in preparing performance plans and

reviews. We hold that here, because the log was not shared with or available to

anyone other than the supervisor who wrote the log, it does not constitute a file

1 References to statutes are to the Government Code unless otherwise

indicated.

1

“used for any personnel purposes by his or her employer” and section 3255 does

not apply.

I. FACTS

Captain Culp, plaintiff Steve Poole‟s supervisor, maintained what he called

a “daily log” regarding each of the employees that he supervised. He created the

log using both a computer and handwritten notes. He created a separate file for

each employee, stored on a flash drive and also in hard copy, which he kept in his

desk with the employee‟s name on it. He included in the log “[a]ny factual

occurrence or occurrences that would aid [him] in writing a thorough and fair

annual review.” He kept these logs throughout the time he was supervising each

employee. Culp would address with the employee behavior recorded in the log

about which he had concerns, and if the behavior nevertheless continued it might

be mentioned in the performance review.

Culp kept the log concerning plaintiff from December of 2008 to July of

2010. He used the log as a reference in preparing annual reviews and assessments

of plaintiff‟s performance under a performance improvement plan. The daily log

prepared by Culp regarding plaintiff included many descriptions of plaintiff‟s

activities on the job and his interactions with Culp, noting both positive and

negative aspects of plaintiff‟s behavior. Some of the incidents described in the log

were included in plaintiff‟s annual performance reviews and his assessments under

a performance improvement plan. For example, the log notes several incidents in

which plaintiff failed to complete his assigned duties in cleaning up the fire

station. As also noted in the log, Culp addressed his concerns with plaintiff before

the annual evaluation in an attempt to correct plaintiff‟s behavior, and plaintiff‟s

performance on cleanup duties was addressed in a performance improvement plan.

Plaintiff‟s annual performance review indicated that this was an area in which he

needed to continue to show improvement.

2

Many incidents recorded in the log were never included in a review. For

example, Culp noted in the log that plaintiff left a training class early one day and

went outside to talk on his cell phone. Culp later discussed the incident with

plaintiff and his log notes indicate that plaintiff explained that he had already

taken that class and passed the associated examination. The log also describes a

training session conducted in a stressful environment during which plaintiff

became very anxious. Culp discussed this incident with plaintiff and offered him

additional training. Neither of these incidents was mentioned in plaintiff‟s annual

performance review.

From time to time Culp discussed his concerns about plaintiff‟s

performance with Culp‟s own supervisor, Battalion Chief Phillips, Office Chief

Camargo, human resources personnel, and attorneys for the Orange County Fire

Authority, relating some of the incidents recorded in his daily log. But he did not

share the log itself with them and he did not allow other employees to review the

daily log.

Plaintiff had the opportunity to review all of his performance evaluations,

which he understood were then placed in his personnel file at headquarters. When

he went to the human resources department at headquarters and asked to see his

personnel file he was allowed to review it and make copies of his performance

evaluations. Plaintiff showed a copy of his performance evaluation to a union

representative, Bob James. The level of documentation in the review caused

James to wonder whether Culp may have been maintaining a file on plaintiff at the

stationhouse. James demanded that Culp provide him with a copy of plaintiff‟s

“station file,” and Culp gave him a copy of his daily log regarding plaintiff.

Shortly thereafter, plaintiff wrote to the director of human resources of the

Orange County Fire Authority, asserting that the inclusion of negative comments

in Culp‟s daily log without providing plaintiff an opportunity to review those

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comments violated Government Code section 3255. He requested that all negative

comments be removed from the log and that all “personnel files” be made

available for his inspection. In response, the fire authority denied his request,

asserting that section 3255 did not apply to Captain Culp‟s “supervisory notes.”

Plaintiff and the Orange County Professional Firefighters Association filed

a petition and complaint in the superior court, seeking declaratory and injunctive

relief, damages, civil penalties, and a writ of mandate directing defendants to

comply with section 3255 before including adverse comments in plaintiff‟s

personnel files. After a trial based on the papers (including transcripts of

depositions of both plaintiff and Culp), the trial court denied relief, concluding that

Culp‟s daily log was not subject to section 3255. The trial court observed, “If

Culp made a negative note about [plaintiff] in his notes, but did not address it in

the yearly evaluation, it does not exist, at least for personnel purposes.”

The Court of Appeal reversed. It reasoned that the daily log constituted a

“file used for . . . personnel purposes” (§ 3255) because a substandard

performance evaluation was based on adverse comments contained in the daily log

and because Culp orally revealed some of the contents of the daily log to his

battalion chief. Therefore, the Court of Appeal concluded that section 3255

required that plaintiff be given an opportunity to respond to the negative

comments in the log before they were “made known to the employer.” We

granted review.

II. ANALYSIS

Because this appeal involves the application of a statute to undisputed facts,

our review is de novo. (See Southern California Edison Co. v. State Board of

Equalization (1972) 7 Cal.3d 652, 659.)

The Firefighters Procedural Bill of Rights Act (the Act) provides

firefighters with certain rights concerning their employment. (§ 3250 et seq.) At

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issue here is section 3255, which provides that “[a] firefighter shall not have any

comment adverse to his or her interest entered in his or her personnel file, or any

other file used for any personnel purposes by his or her employer, without the

firefighter having first read and signed the instrument containing the adverse

comment indicating he or she is aware of the comment.” (§ 3255.) The firefighter

has 30 days to respond, in writing, to an adverse comment, and “[t]he written

response shall be attached to, and shall accompany, the adverse comment.”

(§ 3256.)

Captain Culp, the author of the daily log, was the only person who had

access to it. He discussed some of the incidents described within it with his

superiors and with human resources personnel, but it is undisputed that he did not

permit them to review the log itself. To the extent Culp used any of the adverse

comments contained in the log in any review or assessment of plaintiff‟s

performance, those comments were shared with plaintiff in accordance with

section 3255. The question presented under these undisputed facts is whether

negative comments contained in a document memorializing a supervisor‟s own

thoughts and observations that is not itself made available to or shared with

anyone else comes within section 3255. As explained below, we conclude that

any negative comments contained in the log that were not included in a

performance review or performance improvement plan concerning plaintiff were

not entered in a file “used for any personnel purposes by his or her employer.”

(§ 3255.)

The Act does not define the phrase “used for any personnel purposes by his

or her employer.” In discerning the scope and meaning of section 3255, “ „[w]e

begin with the plain language of the statute, affording the words of the provision

their ordinary and usual meaning and viewing them in their statutory context,

because the language employed in the Legislature‟s enactment generally is the

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most reliable indicator of legislative intent.‟ [Citations.] The plain meaning

controls if there is no ambiguity in the statutory language.” (People v. Cornett

(2012) 53 Cal.4th 1261, 1265.) In interpreting a statutory provision, “our task is to

select the construction that comports most closely with the Legislature‟s apparent

intent, with a view to promoting rather than defeating the statutes‟ general

purpose, and to avoid a construction that would lead to unreasonable, impractical,

or arbitrary results.” (Copley Press, Inc. v. Superior Court (2006) 39 Cal.4th

1272, 1291.)

The statutory language referring to a file “used for any personnel purposes

by his or her employer” might, in isolation, be read broadly enough to include

Culp‟s log, which he used in the performance of his duties as a supervisor. But

critical to an understanding of section 3255 is its statutory context. (See Horwich

v. Superior Court (1999) 21 Cal.4th 272, 276 [“ „we do not construe statutes in

isolation, but rather read every statute with “reference to the entire scheme of law

of which it is part so that the whole may be harmonized and retain

effectiveness.” ‟ ”]; McMahon v. City of Los Angeles (2008) 172 Cal.App.4th

1324, 1332 (McMahon) [when construing language in the Public Safety Officers

Bill of Rights Act, “we must read it in context, as part of a comprehensive

legislative scheme”].) Reading the statutory language in context convinces us that

the Legislature did not intend section 3255 to be read so broadly.

Section 3255 is one of three neighboring provisions of the Act that concern

the rights of firefighters with respect to their personnel files. Section 3255

requires the employer to inform the firefighter of any comment adverse to his or

her interest in a personnel file or any other file used by the employer for personnel

purposes. Section 3256 entitles a firefighter to respond in writing to any adverse

comment “entered in his or her personnel file” and the response “shall be attached

to, and shall accompany, the adverse comment.” Section 3256.5 entitles a

6

firefighter to inspect “personnel files that are used or have been used to determine

that firefighter‟s qualifications for employment, promotion, additional

compensation, or termination or other disciplinary action.” (§ 3256.5, subd. (a).)

If, after reviewing the file, “the firefighter believes that any portion of the material

is mistakenly or unlawfully placed in the file, the firefighter may request, in

writing, that the mistaken or unlawful portion be corrected or deleted.” (§ 3256.5

subd. (c).) The employer must respond to the request in writing, and both the

request and the response become part of the personnel file. (§ 3256.5, subds. (c),

(d).)

As subdivision (a) of section 3256.5 makes clear, the Legislature was not

concerned with any and all files that might in some sense be connected with

personnel matters; the Legislature was, rather, specifically concerned with

“personnel files that are used or have been used to determine th[e] firefighter‟s

qualifications for employment, promotion, additional compensation, or

termination or other disciplinary action.” It is true that the other provisions use

slightly different formulations to refer to the covered “files.” But it is reasonable

to interpret the three provisions in parallel, given that they appear to operate in

parallel, and in the service of the same general goal — “to facilitate the officer‟s

ability to respond to adverse comments potentially affecting the officer‟s

employment status.” (McMahon, supra, 172 Cal.App.4th at p. 1332 [describing

the nearly identical provisions of the statutes applicable to public safety

officers].)2

2 Section 3255 is virtually identical to a statute applicable to public safety

officers (§ 3305), and it establishes rights regarding adverse comments that are

very similar to those that have been granted to teachers. (Ed. Code, § 44031,

subd. (d)(1).) Consequently, cases interpreting those statutes are relevant to our

interpretation of section 3255.

7

As we have observed, an employee‟s “personnel file serves as a permanent

record of his employment; derogatory information placed in that record may be

used against the employee long after the informant becomes unavailable. Thus the

statute provides the employee with the concurrent right to place on the record

material in rebuttal.” (Miller v. Chico Unified School Dist. (1979) 24 Cal.3d 703,

713 (Miller).) Section 3256 requires that the employee‟s response to adverse

comments “shall be attached to, and shall accompany, the adverse comment.”

(§ 3256.) Similarly, section 3256.6 permits the firefighter to request that any

material in the personnel file that is unlawfully placed there or mistaken be

removed or corrected, and both the request and any response by the employer

“become part of the personnel file.” (§ 3256.5, subds. (c), (d).) These statutes

ensure that the employee‟s response is made part of the written record, so that any

individual who accesses that record will have access to the employee‟s response as

well as to the adverse comment. Thus, the Legislature appears to have included

the phrase “any other file used for any personnel purposes by his or her employer”

in section 3255 to ensure that employers will not be able to evade the statute‟s

protections by basing personnel decisions on materials contained in files that are

not designated as the agency‟s official personnel files. Thus, read in context, the

phrase should be interpreted to encompass any written or computerized record

that, although not designated a personnel file, can be used for the same purposes as

a file of the sort described in section 3256.5 — as a record that may be used by the

employer to make decisions about promotion, discipline, compensation, and the

like.

A supervisor‟s log that is used solely to help its creator remember past

events does not fall within the scope of that definition. Even if a supervisor uses

his or her notes to help draft performance evaluations and other documents that

ultimately are placed in a personnel file, the notes themselves are not a file

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preserved by the employer for use in making decisions about the firefighter‟s

employment status. Here, Culp was not plaintiff‟s employer. Plaintiff does not

contend, and nothing in the record demonstrates, that Culp himself had the

authority to take adverse disciplinary actions, such as demotions or discharge,

against plaintiff on behalf of his employer, the Orange County Fire Authority.

Culp‟s comments thus could adversely affect plaintiff only if and when they were

placed in a personnel file or in some other form to which the employer — that is,

those who had the authority to discipline plaintiff — had access.

Cases applying similar statutes are consistent with this conclusion. They

have held that a document containing adverse comments may come within the

disclosure requirement even if not formally entered into the official personnel file,

if the document was either (1) maintained in such a manner that it would be

available to those making personnel decisions in the future, or (2) was actually

used by the employer in making a personnel decision, or both. For example, in

Miller, supra, 24 Cal.3d at page 707, applying Education Code section 44031, we

held that Miller, a school principal, must be permitted to review and respond to

“derogatory written material compiled and maintained by a school district even

though the material has not been properly placed in his personnel file” because

that material had been used by the school board in its decision to transfer Miller to

a teaching position. Miller‟s supervisor used his “ „personal notes and calendar‟ ”

to dictate a summary of “ „meetings, contacts, occurrences, and events‟ ” (Miller,

at p. 711) involving Miller, which were transcribed in the form of 20 memoranda

that were submitted to the school board for its use in deciding whether to reassign

the plaintiff from a position as principal to a teaching position. (Miller, supra, at

p. 714.) “[T]he board received [these] confidential memoranda without first

allowing plaintiff the opportunity to correct any inaccurate derogatory information

contained therein.” (Ibid.) We rejected the school board‟s argument that these

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memoranda were never “ „entered or filed‟ ” in plaintiff‟s personnel file, stating

that an employer “may not avoid the requirements of the statute by maintaining a

„personnel file‟ for certain documents relating to an employee, segregating

elsewhere under a different label materials which may serve as a basis for

affecting the status of the employee‟s employment.” (Id. at pp. 712-713.)

In County of Riverside v. Superior Court (2002) 27 Cal.4th 793, we held

that the county was required to disclose to a police officer who had been

provisionally hired, and then fired, derogatory material in a file containing the

results of a background investigation the county undertook to determine whether

to continue to employ him. The investigatory file was actually used in the

decision to fire the officer, and it would also be available in the future “to every

law enforcement agency to which [the fired officer] applies.” (Id. at p. 803.) “We

think it would elevate form over substance and also permit an end run around the

Bill of Rights Act were we to hold that a law enforcement agency could avoid the

Act simply by first terminating the employee and then placing its adverse

comments in the employee‟s personnel file.” (Ibid.)

Similarly, cases from the courts of appeal have concluded that disclosure

requirements apply to adverse comments about a police officer even though they

were not entered into the officer‟s official personnel file, and even though they had

not been used in making any personnel decision, when those files might be

available to persons making personnel decisions in the future. In Sacramento

Police Officers Assn. v. Venegas (2002) 101 Cal.App.4th 916 (Venegas), the

appellate court concluded that an index card maintained in the name of a police

officer by the internal affairs department, which listed all complaints that had been

made against him, was a file “ „used for . . . personnel purposes‟ ” because it

would be available to those responsible for disciplinary action. “The Legislature

appears to have been concerned with the potential unfairness that may result from

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an adverse comment that is not accompanied by punitive action and, thus, will

escape the procedural protections available during administrative review of a

punitive action.” (Id. at p. 926.) The court observed that “internal affairs

personnel could be influenced to a peace officer employee‟s detriment in a future

investigation if the officer‟s internal affairs file or index card contains an

unexplained or unrebutted adverse comment.” (Id. at p. 929.) Furthermore,

management of the officer‟s employing agency had access to these cards and,

although complaints that had been found to be frivolous, unfounded, or exonerated

could not be used for punishment or promotional purposes, they could be used to

require counseling or additional training. (Ibid.; see Pen. Code, § 832.5,

subd. (c)(2), (3); Gov. Code, § 3304, subd. (g).)

Likewise, in Aguilar v. Johnson (1988) 202 Cal.App.3d 241, 246, the

appellate court held that a police officer was entitled to review and respond to a

citizen‟s complaint that had been placed in a “confidential investigative file

separate from appellant‟s personnel file.” The complaint was not investigated and

no action was taken on it. The court rejected the contention that uninvestigated

complaints such as this one were not considered in making personnel decisions,

concluding that “[t]heir placement in an officer‟s personnel file could potentially

lead to not only adverse personnel decisions but could also result in a more severe

penalty being imposed in a subsequent disciplinary proceeding. Because of this

potential adverse impact on the officer, the complaint is an „adverse comment‟

within the meaning of these sections.” (Id. at pp. 249-250; see Seligsohn v. Day

(2004) 121 Cal.App.4th 518 [requiring disclosure of records of discrimination

complaints filed about officer even though they were not maintained in the

officer‟s personnel file because they could have employment consequences in the

future].) In contrast, McMahon, supra, 172 Cal.App.4th 1324, 1333, held that

investigative files of a number of citizen complaints that had been made against an

11

officer, but had been determined to be unfounded, were not files used for

personnel purposes because, under the department‟s internal regulations and Penal

Code section 832.5, the materials they contained could not be used in personnel

decisions.

In the present case, there is no evidence that Culp‟s log would be available

to anyone making personnel decisions in the future. The log was available to no

one other than Culp himself. Many of the potentially negative comments

contained in the log were never included in any document made available to

plaintiff‟s employer, because Culp either deemed the incidents inconsequential or

resolved them in plaintiff‟s favor. And it is undisputed that the documents Culp

prepared with the assistance of the log — plaintiff‟s performance evaluations and

improvement plan — were disclosed to plaintiff before they were entered into his

personnel file.

In concluding that section 3255 applied to Culp‟s log, the Court of Appeal

found this case to be analogous to Miller, supra, 24 Cal.3d 703. Miller, however,

is not comparable. There was no contention in Miller that the supervisor‟s

“ „personal notes and calendar‟ ” should have been disclosed to Miller. Rather, the

statute was triggered when Miller‟s supervisor transmitted the memoranda he

prepared with the assistance of those notes to the school board for its use in

making a decision about Miller‟s employment status. Likewise, in the present

case, the statute was triggered when the performance evaluation was entered into

plaintiff‟s personnel file. Miller does not suggest an earlier triggering date.

We are not persuaded to the contrary by the Court of Appeal‟s reasoning.

The Court of Appeal asserted that “[l]ike the situation in Miller, information not

contained in [plaintiff‟s] main personnel file was presented to his employer prior

to an adverse employment action by the employer. As in Miller, revealing the

contents of the daily logs to Battalion Chief Philips denied Poole the opportunity

12

to respond to the adverse comments made known to the employer, contrary to the

intent of the protective statutory enactment.” This case is distinguishable from

Miller. It is undisputed that Culp did not share his log with anyone; he merely

discussed with others some of the incidents that he had observed and also recorded

in his log, preliminary to completing plaintiff‟s evaluations and performance

improvement plan. Nothing in the Act attempts to regulate a supervisor‟s

preliminary verbal consultations with his superiors or human resources personnel

prior to completing an evaluation. The statute plainly gives firefighters the right to

review and file a written response to certain documents. Its language cannot be

stretched to include a right to file a written response to verbal communications.

The Court of Appeal expressed concern that denying the employee access

to the supervisor‟s daily log would frustrate the Act‟s purpose of “providing

firefighters a right to meaningfully respond to adverse comments that may affect

personnel decisions concerning the firefighter.” It reasoned that although Culp

could use the notes to help him remember events that he included in annual

personnel evaluations, plaintiff could not be expected to remember the details of

these events “months and months later when he was finally made aware of the

adverse comments in the course of a yearly performance review” and his ability to

correct inaccurate or incomplete statements in the review would be impeded.

The problem identified by the Court of Appeal would exist to some degree

regardless of whether a supervisor kept notes or simply relied on an excellent

memory. If performance reviews occur only annually, an employee may have a

different recollection from his or her supervisor of events occurring many months

earlier, or may not recall those events at all. Unreasonable delay in informing an

employee about incidents that could affect his or her employment status might

sometimes be prejudicial to the employee‟s ability to rebut an employer‟s

characterization of the employee‟s conduct, but prejudice resulting from such

13

delay is not the issue that is addressed in section 3255. The only timing

requirement in section 3255 is the requirement that the employee have the

opportunity to review the adverse comment before it is actually entered into the

file. There is a provision in the Act that addresses delay, in the context of

allegations of misconduct. (§ 3254.) Generally, no punitive action may be taken

on an allegation of misconduct unless the investigation of the allegation is

completed and the employee is notified of the proposed disciplinary action within

one year. (§ 3254, subd. (d).) Plaintiff, however, does not allege that section 3254

was violated or that there was any unreasonable delay in informing him of

incidents that might cause him to receive a negative evaluation.

III. CONCLUSION

The decision of the Court of Appeal is reversed.

CANTIL-SAKAUYE, C. J.

WE CONCUR:

WERDEGAR, J.

CHIN, J.

CORRIGAN, J.

LIU, J.

CUÉLLAR, J.

KRUGER, J.

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CONCURRING OPINION BY CUÉLLAR, J.

Today the court strikes a careful balance between firefighters‟ procedural

protections and the realities that supervisors confront when managing public

organizations. The foundation for the court‟s opinion is its interpretation of the

Firefighters Procedural Bill of Rights Act (Gov. Code, § 3250 et seq.), and the

logic of that interpretation is unassailable. I nonetheless write separately to

underscore an important principle about the interpretive responsibilities that are so

often at the heart of what we do. The bottom line is this: however important it is

to train our attention on the plain meaning of a statutory provision we are

construing, we must read that provision as we do here — in its larger context —

when deciding whether its meaning is plain.

Suppose a statute is enacted with provisions similar to the ones at issue in

this case. “Any public employee,” the statute provides, “has a right to review

personnel files that are used or have been used to determine the employee‟s

qualifications for employment, promotion, or discipline.” The question later arises

whether a supervisor‟s hastily scrawled note on a napkin about a subordinate‟s

performance — subsequently placed in a file folder, and then digitally copied onto

a smartphone — constitutes a “personnel file,” and whether the supervisor‟s

occasional glance at the napkin or the digital file before writing a more formal

evaluation constitutes “use[] to determine the employee‟s qualifications for

employment, promotion, or discipline.” That the ordinary usage and dictionary

1

definitions of terms like “file,” “use,” and “determine” would matter in answering

these questions is beyond question. (E.g., Ceja v. Rudolph & Sletten, Inc. (2013)

56 Cal.4th 1113, 1121 [using ordinary usage and dictionary definitions to construe

“good faith”].)

What would be difficult to defend, however, is the proposition that the

inquiry should end without considering what the rest of the statute tells us about

the meaning of the phrase at issue. Does a separate statutory provision imply that

“personnel file” is to be construed broadly or narrowly? Are electronic records

addressed elsewhere in the statute? If a phrase like “used to determine the

employee‟s qualifications” is not explicitly defined in the statute, do other

provisions illuminate anything relevant about how the statutory scheme

understands the limits of the procedural protections it affords?

The devil, in short, is in the details. And the details are elucidated by

context — the statutory structure and the words of surrounding or related

provisions. The statute‟s structure and its surrounding provisions can reveal the

semantic relationships that give more precise meaning to the specific text being

interpreted, even if the text may have initially appeared to be unambiguous. 1

1 In Apple Inc. v. Superior Court (2012) 56 Cal.4th 128, 133, for example,

the court construed Civil Code section 1747.08, which provides, “no person, firm,

partnership, association, or corporation that accepts credit cards” shall request or

require the cardholder to provide personal identification information and cause it

to be recorded. The plaintiff argued that the plain statutory language applied to

online retailers selling electronically downloadable products. (Id. at pp. 136-137.)

The majority acknowledged the statute‟s plain meaning was consistent with the

plaintiff‟s reading, but nonetheless rejected that construction based on the

provision‟s structure, context, and purpose. (Id. at pp. 137-139.) In California

School Employees Association v. Governing Board (1994) 8 Cal.4th 333, 335-336,

the court construed Education Code section 88203, which provides that classified

community college employees are entitled to paid holidays including “every day

appointed by the President . . . for a public fast, thanksgiving, or holiday . . . .”

(footnote continued on next page)

2

(Hodges v. Superior Court (1999) 21 Cal.4th 109, 114 [interpreting the meaning

of a provision “ „is to discern the sense of the statute, and therefore its words, in

the legal and broader culture‟ ”].) And context also tells us more about the

statute‟s underlying purpose than we might glean from reading the text of a

statutory provision in isolation. (Horwich v. Superior Court (1999) 21 Cal.4th

272, 276 (Horwich) [explaining that understanding the Legislature‟s intended

purpose requires consideration of a statute‟s structure and context].)

The majority‟s framework for interpreting Government Code section 3255

appears very much in accord with these concerns. (See maj. opn., ante, at pp. 5-

7.) That is, this court‟s approach to interpreting statutes emphasizes the primacy

of the Legislature‟s intended purpose. (Goodman v. Lozano (2010) 47 Cal.4th

1327, 1332 [“In interpreting a statute, our primary goal is to determine and give

effect to the underlying purpose of the law”].) Giving effect to that purpose

requires us to start with a statute‟s text and to train our focus on the language

rather than extrinsic interpretive aids such as legislative history when there is not

sufficient textual ambiguity to warrant the use of such material. (Maj. opn., ante,

at p. 5; Ennabe v. Manosa (2014) 58 Cal.4th 697, 713; Hsu v. Abbara (1995) 9

(footnote continued from previous page)

The plaintiffs argued that a 1991 presidential proclamation designating “National

Days of Thanksgiving” to celebrate the end of the Persian Gulf War triggered paid

holidays under the statute. (Id. at p. 336.) The court concluded that the plaintiffs‟

interpretation was consistent with clear and unambiguous statutory language, but it

nonetheless declined to adopt that construction given what the rest of the statute

conveyed about the Legislature‟s intended purpose. (Id. at pp. 340-342; see Cal.

Charter Schools Assoc. v. Los Angeles Unified School District (2015) 60 Cal.4th

1221, 1237-1238 [declining to adopt plain meaning construction in light of the

regulatory context]; Simpson Strong-Tie Co., Inc. v. Gore (2010) 49 Cal.4th 12,

26-27 [rejecting “plain language” construction because it was contrary to the

Legislature‟s intended purpose].)

3

Cal.4th 863, 871.) But, as the majority opinion rightly acknowledges (maj. opn.,

ante, at p. 6), the task of interpreting the relevant statutory text plainly includes

consideration of the statute‟s structure and the light it sheds on the Legislature‟s

intended purpose. (Martin v. Wells Fargo Bank (2001) 91 Cal.App.4th 489, 494

[construing statute in light of its text and structure]; see Lungren v. Deukmejian

(1988) 45 Cal.3d 727, 735 [“the words must be construed in context, and

provisions relating to the same subject matter must be harmonized to the extent

possible”].)

Moreover, our ability to determine whether an apparently plain reading of a

statute‟s text produces an absurd result — a question we cannot avoid even if the

relevant text of a statutory provision seems clear on its face — depends on some

engagement with what we take to be the substantive goals the Legislature

plausibly sought to advance. Thus, although we often say a statute‟s “plain

meaning governs” when there is no ambiguity (e.g., Even Zohar Construction &

Remodeling, Inc. v. Bellaire Townhouses, LLC (2015) 61 Cal.4th 830, 838), it

would be problematic if our use of this formulation were interpreted to mean that

an examination of a statute‟s context is warranted only when there is ambiguity on

a statute‟s face — and I do not read the majority opinion to so suggest. To the

contrary, it recognizes that, along with the text of the statutory provision directly

at issue, structure and context can be critical in determining whether ambiguity

exists and in discerning the Legislature‟s intended purpose. (Maj. opn., ante, at

p. 6; Horwich, supra, 21 Cal.4th at p. 276; Manning, What Divides Textualists

from Purposivists? (2006) 106 Colum. L.Rev. 70, 84 [observing that even

textualists “recognize that the relevant context for a statutory text includes the

mischiefs the authors were addressing” given that “speakers use language

purposively”].)

4

There is a certain simplicity in the idea that our interpretive task ends if the

meaning of a pivotal statutory phrase is “plain.” (E.g., People v. Cornett (2012)

53 Cal.4th 1261, 1265.) And indeed, giving effect to a statute‟s text and the

intended purpose it implies is precisely what anchors the court‟s role in a system

of separated powers. (See Kopp v. Fair Pol. Practices Com. (1995) 11 Cal.4th

607, 672-673 (conc. opn. of Mosk, J.).) But understanding whether that meaning

is plain is not a project well served by reading statutory provisions as isolated

fragments. (Id. at p. 673 [“To seek the meaning of a statute is not simply to look

up dictionary definitions and then stitch together the results.”]) Instead our task is

to consider the words of the text as part of a larger statutory project, so we can

better discern not only how to resolve ambiguity but whether ambiguity exists in

the first place. (People v. Johnson (2015) 61 Cal.4th 674, 682 [explaining that we

construe a provision‟s words in the context of the statutory scheme to determine

meaning and also whether the language is ambiguous].) Which is exactly what the

court has done in this case.

CUÉLLAR, J.

5

See next page for addresses and telephone numbers for counsel who argued in Supreme Court.

Name of Opinion Poole v. Orange County Fire Authority

__________________________________________________________________________________

Unpublished Opinion

Original Appeal

Original Proceeding

Review Granted XXX 221 Cal.App.4th 155

Rehearing Granted

__________________________________________________________________________________

Opinion No. S215300

Date Filed: August 24, 2015

__________________________________________________________________________________

Court: Superior

County: Orange

Judge: Geoffrey T. Glass

__________________________________________________________________________________

Counsel:

Silver, Hadden, Silver, Wexler & Levine, Silver, Hadden, Silver & Levine, Richard A. Levine and Brian P.

Ross for Plaintiffs and Appellants.

Woodley & McGillivary, Thomas A. Woodley, Diana J. Nobile; Wylie, McBride Platten & Renner and

Mark S. Renner for International Association of Fire Fighters as Amicus Curiae on behalf of Plaintiffs and

Appellants.

Carroll, Burdick & McDonough, Gary M. Messing, Jason H. Jasmine and Gregg McLean Adam for CAL

Fire Local 2881, California Correctional Peace Officers Association and Peace Officers‟ Research

Association of California Legal Defense Fund as Amici Curiae on behalf of Plaintiffs and Appellants.

Haight Brown & Bonesteel, Kevin M. Osterberg, Blythe Golay; Woodruff, Spradlin & Smart, Barbara

Raileaunu; Dentons US and Jules S. Zeman for Defendant and Respondent.

Michael N. Feuer, City Attorney (Los Angeles), Janis Levart Barquist and Blithe Smith Bock, Deputy City

Attorneys, for League of California Cities and California State Association of Counties as Amici Curiae on

behalf or Defendant and Respondent.

1

Counsel who argued in Supreme Court (not intended for publication with opinion):

Richard A. Levine

Silver, Hadden, Silver & Levine

P.O. Box 2161

Santa Monica, CA 90407-2161

(310) 393-1486

Jules S. Zeman

Dentons US

300 South Grand Avenue, 14th Floor

Los Angeles, CA 90071

(213) 688-1000

Blithe Smith Bock

Deputy City Attorney

200 North Main Street, Sixth Floor

Los Angeles, CA 90012

(213) 978-6936

2