Supreme Court Upholds Termination of Public Employee Who Refused to Answer Questions Without Formal Grant of Immunity

BY D. CRAIG FOX

On February 9, 2009, the California Supreme Court decided Spielbauer v. County of Santa Clara, 45 Cal.4th 704 (2009). The Court held, in a unanimous decision, that a public employee can be terminated for refusing to answer potentially incriminating work-related questions, even in the absence of a formal grant of immunity. This decision restores certainty to administrative investigations of public employees and reaffirms the long-standing principle that public employers can compel employees to answer questions during administrative investigations.

BACKGROUND

While defending a client, Deputy Public Defender Thomas Spielbauer (Spielbauer) made false representations to the judge concerning the availability of a witness in order to introduce helpful hearsay statements. In an ensuing internal investigation, Spielbauer's supervisor advised him that his answers could not be used against him in a criminal proceeding and that he could be disciplined for not answering. Spielbauer then refused to answer his supervisor's questions about the incident, based on advice of counsel who contended that Spielbauer must first be given a "formal grant of immunity." Spielbauer was terminated for insubordination, gross misconduct and seeking to mislead a court.

Spielbauer challenged his termination in a petition for a writ of mandate, which the trial court denied. The court of appeal reversed, finding that the supervisor's criminal advisement was insufficient to compel Spielbauer's responses under threat of discipline. The Supreme Court granted review to consider the specific question, whether a public employer must first offer immunity from criminal charges stemming from an employee's statements, after the employee invokes the Fifth Amendment right against self-incrimination, before terminating the employee for refusing to answer questions related to work misconduct. The Court's answer was "no." 45 Cal.4th at 714.

THE COURT'S ANALYSIS

The Supreme Court first acknowledged the well established rule that incriminating answers may be compelled, without violating the Fifth Amendment, when the person being questioned receives immunity against all direct and indirect prosecutorial use of the answers. Relying on United States Supreme Court and other federal cases, the Court then considered how the privilege against self-incrimination operates in employment situations. In particular, the privilege protects a public employee from being forced to provide incriminating answers to questions under threat of dismissal, when those answers could be used in a criminal proceeding, even though the employer provides no advance formal grant of immunity.

Significantly, the Court noted that the privilege against self-incrimination provides no protection against non-criminal use of compelled responses. Therefore, the employer may use such responses for adverse employment purposes, including termination, provided the employer does not require the employee to waive the right against self-incrimination. The United States Supreme Court has never held that during a non-criminal investigation, "an employee must be offered formal immunity from criminal use before being compelled, by threat of job discipline, to answer questions on that subject." Id. at 718. In fact, the Court observed that the United States Supreme Court has consistently chosen not to change this rule even though it has had the opportunity to do so for over forty years.

The Court then reviewed California cases addressing application of the Fifth Amendment in employment matters. Among them is Lybarger v. City of Los Angeles, 40 Cal.3d 822 (1985), where a police officer, who had not been advised of his right to remain silent, refused to answer questions related to official misconduct and was terminated. A trial court upheld the termination. The court of appeal found that the officer had no legal right to be free from an employment-related sanction for his refusal to answer the questions, since under existing law any incriminating statements could not be used against him whether or not he was advised of his constitutional right to remain silent. However, the Supreme Court reversed, ruling that the Public Safety Officers Bill of Rights Act provided the officer with the right to be advised of his right to remain silent, subject to employment sanctions in so doing, and that any answers could not be used against him in a criminal proceeding. The Court did not address the Firefighters Bill of Rights Act, enacted after the appellate decision in Spielbauer, which contains a statutory requirement for a formal grant of immunity. [Government Code Section 3253(e)(1).]

PUBLIC POLICY CONSIDERATIONS

Finally, the Court reviewed the purpose behind a public employer's right to question an employee under threat of discipline, without providing formal immunity. Public employees are held to a higher standard and "owe unique duties of loyalty, trust, and candor to their employers, and to the public at large." 45 Cal.4th at 725. The Court reasoned:

"Public agencies must be able promptly to investigate and discipline their employees' betrayals of this trust. In the vast majority of cases, the urgent administrative need to root out and eliminate misfeasance or malfeasance by public employees takes priority over any penal implications…The Constitution cannot mean that a public employee may refuse with impunity to account for his or her performance on the public payroll, and may delay the progress of an employer's inquiry, unless and until he or she obtains a formal and legally binding guarantee that any statements obtained by the employer will never be used to prosecute the employee on criminal charges." Id. at 725-726.

CONCLUSION

Ultimately, the California Supreme Court found that Spielbauer had been accurately, though unnecessarily, advised that any answers he gave to his supervisor's questions could not be used against him in a criminal prosecution, and that he was properly terminated for refusing to answer those questions since he had no state or federal right to receive a formal grant of immunity from criminal prosecution. The Court recognized the importance of ensuring that public agencies are able to conduct prompt and thorough investigations of their employees when misconduct is suspected, regardless of any incidental burden this places on prosecution of the employee. While the Court declined to decide whether Lybarger warnings are required for non-police employees, a methodical approach, including Lybarger warnings, is advisable for all public employees.

FOR ADVICE FROM RW&G CONCERNING LAW ENFORCEMENT MANAGEMENT AND PERSONNEL ISSUES, PLEASE CONTACT D. CRAIG FOX OR ANY OF THE LAWYERS IN THE FIRM'S LABOR AND EMPLOYMENT DEPARTMENT.

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