MAJOR CHANGE FOR INTERNAL AFFAIRS
January 30, 2007
On January 12, 2007, the Sixth Appellate District of the California Court of Appeal issued an opinion in the case of Spielbauer v. County of Santa Clara, 2007 DAR 591; 2007 Cal.App.LEXIS 40. That decision impacts upon an agency’s ability to conduct an administrative investigation of alleged misconduct which could also be considered criminal in nature (e.g. theft of petty cash, sexual battery, use of unnecessary and/or excessive force, etc.).
The court ruled that a public employee cannot be charged with insubordination for refusing to answer questions which might incriminate him or her, “unless the state first grants or offers immunity, i.e., a binding undertaking to not use his or her answers in any criminal prosecution.”
In footnote 12, the court states what appears to be the key element of this case, “we hold only that, in the absence of some semblance of legislative authority, a public employer has no power to peremptorily and unilaterally immunize statements of its employees, and that in the absence of such a grant of immunity, it cannot lawfully compel them to answer incriminating questions, or punish their refusal to do so.”
The court also states that the plaintiff’s supervisor could not insure that the compelled statement would not be used against the employee in the future, concluding that “…it is not the interrogator’s opinion that matters – it is the opinion of the prosecutor, and ultimately a judge, in some future trial. The interrogatee cannot be certain that the prosecutor will not successfully assert some unguessed – at weakness in the apparent compulsion, e.g., the employer lacks authority to back up the threat of dismissal.”
The court acknowledged that, historically, public employees were compelled to answer incriminating questions after being told that any statements made against their interest would be excluded from any subsequent prosecution arising out of those circumstances. The court cites to the primary federal case, Garrity v. State of New Jersey (1967) 385 U.S. 493, as well as California’s key case, Lybarger v. City of Los Angeles (1985) 40 Cal. 3 rd 822.
However, the court notes that in each of those two cases the protection offered the public sector employee was exclusionary protection, not immunity. “If a public employee is compelled to answer incriminating questions under a threat of dismissal, his responses will be excluded from a subsequent criminal prosecution. This exclusionary rule is a remedial device predicated upon anunlawful violation of the interrogational privilege.” (Emphasis in original.)
The Spielbauercourt goes on to state that “the governing federal cases clearly reflect the distinction between immunity required for a state to lawfully compel answers, and the right to exclude answers that are unlawfully compelled.” Unfortunately, the court has basically concluded that the law enforcement agency cannot provide the “formal immunity protections” required before being able to compel cooperation. In the Spielbauer case itself, the court stated that, “although the supervisor stated that plaintiff’s answers could not be admitted in a criminal prosecution – an apparent allusion to the rule of exclusion – he never granted or offered immunity.” (Emphasis in original.)
The court further acknowledges that this ruling is contrary to several prior decisions under California law. “The relatively straight forward analysis set forth above conflicts with several California decisions that have failed to note the dual nature of the federal protection and the need for an offer or grant of immunity as a predicate for lawfully compelled answers.”
In referring to the decisions in Garrity, Lybarger and Lefkowitz v. Turley, (1973) 414 U.S. 70, the court states, “we are unable to read…those cases to “deem” the operation of the exclusionary rule at a future criminal trial an adequate basis to compel an interrogatee to answer incriminating questions. On the contrary, they…stand for the interrogatee’s right to insist on immunity as a precondition for any such compulsion.
The Court of Appeal goes on to acknowledge that “we are of course constrained to follow the holdings of the California Supreme Court. The actual holding of Lybarger is that the officer’s interrogation violated a statute requiring that public safety officers be advised of their constitutional rights.” The statute the court was referring to is the Peace Officers Procedural Bill of Rights Act (POBOR). The court goes on to state that “the statute at issue there has no bearing on the case before us, since plaintiff is not a public safety officer.” [Plaintiff in the Spielbauercase was a Deputy Public Defender and not protected by POBOR.]
The Spielbauer court goes on to state that the Lybarger court never referred to immunity, “it simply overlooked the requirement of immunity, treating the federal exclusionary rule as a substitute for it.” Citing back to an earlier California Supreme Court decision, Daly v. Superior Court (1977) 19 Cal.3 rd 132, the court ruled that “the immunity authorized by that decision thus entails, first, legislative authority…; second, due consideration of the risk that immunity may significantly hinder enforcement of the criminal laws; and third, direct involvement of a court by whom the merits of a particular request may be considered, and conflicting interest weighed.”
In pointing out the need for prosecutorial review and court approval the Spielbauer court states that “the power to immunize disclosures cannot be freely dispensed without risking the serious possibility of corruption, abuse, and substantial mischief and uncertainty in the prosecution of criminal cases….” Continuing, the court states, “indeed, the power to immunize co-worker’s statements may be used by unscrupulous investigators to shield friends and colleagues from criminal sanctions.”
HOW THIS AFFECTS YOUR AGENCY
It now appears that, absent legislative authority (which exists for public safety officers but not other public sector employees) to grant immunity, plus prior approval from the appropriate prosecutor, plus prior approval by a court, a public sector employee cannot be compelled to respond to questions which could incriminate the employee in some future criminal prosecution arising out of the same circumstances. That means, for example, even with prior legislative authority, the employer must first secure the consent of the prosecutor and then the approval of a court before being able to insure a public sector employee that use immunity is, in fact, applicable. As such it would appear, that, without such prior approval, we could not proceed to compel the employee to respond. However, the only person who will be harmed by this decision is the employee who is the subject of the investigation.
In virtually all cases in which we have been involved, the need for a subject employee to state “mea culpa” is non-existent. By the time the subject employee is being interviewed, the internal affairs investigator has either enough evidence to move forward or not. The admission by the employee is not needed to make the case and, quite frankly, if it were needed the case itself would be extremely weak.
What this means, from a practical perspective, is that an employee’s refusal to cooperate and respond to the questions means the decision of whether or not to sustain a complaint will be made on all other evidence gathered without the input of the subject employee. That just doesn’t benefit the subject employee!
For the past forty years, the protections afforded pursuant to Garrity and Lybarger have been sufficient to protect subject employees and enable them to answer questions of their employer and not fear that their answers will be used against them in subsequent criminal prosecution. This case, however, will preclude the interview of that employee without first obtaining the immunity set forth above or a waiver of the employee’s rights.
The County of Santa Clara intends to petition the California Supreme Court for review and our office, as General Counsel for the California Police Chief’s Association and the California State Sheriffs’ Association, will be submitting an amicus brief supporting the position of the County.
As always, and especially when dealing with unique areas of the law, it is imperative that you confer with your own agency’s legal advisor. Should you wish to discuss this case in greater detail, please feel free to contact me at 714 – 446-1400 or at mjm@jones-mayer.com.