LYBARGER LIVES! SPIELBAUER OVERTURNED BY SUPREME COURT.
On February 9, 2009, the California Supreme Court unanimously overturned the decision of the Court of Appeal in the case of Spielbauer v. County of Santa Clara. In so doing, the Supreme Court reaffirmed numerous prior court decisions which held that “a public employee may be compelled, by threat of job discipline, to answer [potentially incriminating] questions about the employee’s job performance, so long as the employee is not required, on pain of dismissal, to waive the constitutional protection against criminal use of those answers.”
Facts of the Case
Spielbauer was a deputy public defender who was being investigated by his employer on the charge that he deliberately made deceptive statements to the court while representing a criminal defendant, which is a misdemeanor under Business & Professions Code sec. 6128. He was advised by the employer’s investigator that since he was being ordered to cooperate, nothing he said, nor the “fruit of the poisonous tree,” could be used against him if there was a subsequent criminal prosecution of him for his actions arising out of this case. Spielbauer’s attorney refused to allow him to answer, claiming that the investigator’s advisement afforded Spielbauer no protection against the use of incriminating statements and that such protections applied only to peace officers.
Spielbauer was ultimately terminated for insubordination (refusing to answer the investigator’s questions) and gross misconduct unbecoming a county officer (stemming from his deliberately misleading the court). After a hearing officer and, then, the county personnel board upheld the charges and the discipline, he sought mandamus relief in the superior court. He claimed, among other things, that he couldn’t be dismissed for refusing to cooperate, on grounds of his constitutional right against self incrimination, until he had been offered and/or given formal criminal use immunity. The superior court denied his writ petition and he appealed to the Court of Appeal, which reversed the lower court.
The Court of Appeal ruled that, although the charges of misconduct were supported by the evidence, a public sector employee, in fact, could not be charged with insubordination for refusing to answer potentially incriminating questions unless he or she was first given a “formal grant of criminal use immunity.” The Court of Appeal also held that such formal use immunity could only be granted if (1) there was legislative authority to offer it to the employee; (2) there was prior approval secured from the appropriate prosecutor; and (3) there was judicial oversight approving the granting of immunity. Following that decision, the county petitioned the California Supreme Court for review, which was granted.
Request for Amicus Support
Santa Clara County asked the California State Sheriffs Association (CSSA) and the California Police Chiefs Association (CPCA) for support in the form of an amicus curiae brief. The County believed it was important for the Supreme Court to hear directly from law enforcement executives how this decision would adversely impact upon their ability to investigate allegations of misconduct against their employees.
This negative impact would be true in their case, more so than with any other public sector employers, since many complaints against peace officers involve allegations of actions which would not only violate department policies, but could also violate the Penal Code (e.g. unwanted touching, use of force, forced entry into homes, detention of persons against their will, etc.). Additionally, the law imposes a duty on law enforcement executives to conduct swift and complete investigations when charges, even untrue charges, are lodged against peace officers and it is imperative that they be able to secure cooperation from officers in those personnel investigations.
The firm of Jones & Mayer, as general counsel to both CSSA and CPCA, prepared and submitted an amicus curiae brief to the Supreme Court, arguing that the law has been long established that when a public sector employer compels such cooperation, the employee’s statement is no longer voluntary – it is a coerced, compelled statement. As such, the employee’s rights under the Fifth Amendment are automatically triggered and there is no need for the granting of formal criminal use immunity.
In addition to the County’s brief, that of Spielbauer, and the amicus brief from CSSA and CPCA, there were five other amicus briefs accepted by the Supreme Court. After reviewing all the briefs, the Court set a date for oral argument and the County asked for support from the California Attorney General, who had filed an amicus brief, and from CSSA and CPCA.
The Court heard argument on December 2, 2008 and the County’s position was presented by Deputy County Counsel Marcy L. Berkman. In addition, Deputy Attorney General Karen Huster presented argument on behalf of the Attorney General’s Office, and I had the honor of doing so on behalf of CSSA and CPCA. [In the published opinion, the Court makes note of the amicus brief from CSSA and CPCA.]
No Formal Grant of Immunity is Required
The Supreme Court ruled that “the constitutional guarantee against compelled self-incrimination protects an individual from being forced to testify against himself or herself in a pending criminal proceeding, but it does more than that. It also privileges a person to not answer official questions in any other proceeding, ‘civil or criminal, formal or informal,’ where he or she reasonably believes the answers might incriminate him or her in a criminal case.”
The Court went on to discuss the concept of “compulsion” by stating that “official compulsion, for purposes of the privilege, may include a public employer’s threat to dismiss an employee for refusing to answer potentially incriminating questions. Thus, the law is clear that incriminating answers coerced from a public employee under threat of dismissal cannot be used against the employee in a criminal proceeding. This is so even where the employee received no advance grant of formal immunity.” (Emphasis in original.)
The Court also held that so long as the employee is not required to surrender his or her Fifth Amendment right against self incrimination, the employee can be compelled to cooperate and answer even potentially incriminating questions. The reason for this, states the Court, is because of “the paramount duty of public employees to their employers….” The Court, in referring to an earlier federal court decision, states that “when one is compelled to give a self-incriminating statement, the Fifth Amendment confers immunity directly, without the necessity of a statute.”
In reaffirming its decision in Lybarger v. City of Los Angeles, (1985) 40 Cal. 3d 822, the Court notes that Lybarger “had neither a constitutional nor a statutory right to remain silentfree of administrative sanction. As a matter of constitutional law, it is well established that a public employee has no absolute right to refuse to answer potentially incriminating questions posed by his employer. Instead, his self-incrimination rights are deemed adequately protected by precluding any use of his statements at a subsequent criminal proceeding.
(Emphasis in original.)
HOW THIS AFFECTS YOUR AGENCY
This unanimous decision by the California Supreme Court spells out the protections afforded public employees when they are compelled to answer potentially incriminating questions, which are directly and narrowly focused on their job.
The Court ruled that “in performing their official functions, government officers and employees owe unique duties of loyalty, trust and candor to their employers, and to the public at large. Public agencies must be able promptly to investigate and discipline their employees’ betrayal 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.” (Emphasis in original.) In this statement, the Court sets forth the justification behind the granting of such immunity – the need of the public employer to quickly determine if its employees are acting properly or not.
It is important to note that the public employer is not granting any form of immunity to the employee; the employer is merely informing the employee of his or her constitutional protections against incriminating statements being used against the employee in a criminal prosecution. The statements, however, can be used in any appropriate disciplinary action taken by the employer against the employee.
As a result of this decision, the California Supreme Court has left in place the process which has existed in California for the past quarter of a century under the Lybarger decision – nothing has changed. If you are investigating a public employee as a result of charges that he or she violated department policies, and the underlying act could also be criminal in nature, advise the employee pursuant to Lybarger.
The employee is then obligated to cooperate and answer your questions truthfully, honestly and completely, since the employee no longer has to fear that an admission against their interest could be used against them in subsequent criminal prosecution. A refusal by the employee to answer questions under those circumstances would constitute insubordination and could result in discipline, up to and including termination, for the insubordinate act itself.
As always, we urge that you confer with your agency’s legal counsel when issues of the law are present. If you wish to discuss this case in greater detail, please feel free to contact me at (714) 446-1400 or via e-mail at mjm@jones-mayer.com.