When the 5th Won't Help You

The Fifth Amendment right against self-incrimination is familiar to most people, probably due to an abundance of television dramas. On television screens across America, the following scene is repeated nightly: The confident defense attorney strides into the interrogation room just as her hapless client is about to confess to a heinous crime. She tells detectives that her client is “taking the Fifth” and she is taking him home. The helpless detectives punch a wall, cursing the fact that the suspect has been freed.

In stark contrast, a far more mundane scene has occurred over decades in public workplaces. Public employees suspected of potentially criminal misconduct by their employers were ordered on threat of insubordination to respond to employers’ questions about their conduct. A union representative or attorney usually sat idly by, aware that their clients’ statements could be used in disciplinary proceedings, but not in a criminal prosecution.

Then, the 6th District Court of Appeal rewrote the script in Spielbauer v. County of Santa Clara, 146 Cal.App.4th 914 (2007), holding that a public employer could not compel an employee to answer potentially incriminating questions without a formal grant of immunity from prosecuting authorities. The decision created much consternation among employers, appearing to limit their ability to investigate the relatively few but very serious instances of criminal misconduct by public employees.

Relief for public employers arrived on Feb. 9, 2009, when the California Supreme Court overturned the 6th District’s decision. Spielbauer v. County of Santa Clara, 2009 DJDAR 1851. The Supreme Court held that a public employer can compel an employee to answer questions during an administrative investigation without first obtaining a formal grant of immunity.

Thomas Spielbauer was a deputy public defender in Santa Clara County.  His employer had reason to believe that while acting in his capacity as a deputy public defender, Spielbauer had made misrepresentations to a trial court as to the whereabouts of a key witness. Spielbauer sought to introduce hearsay evidence after telling the court that a key witness was unavailable. The prosecutor then discovered that Spielbauer had spoken to the allegedly unavailable witness the day before the trial. In allegedly making misrepresentations to the court, Spielbauer subjected himself to criminal prosecution and potential discipline by the State Bar.

Spielbauer’s employer began an internal investigation, part of which included interviewing Spielbauer. At the outset of his disciplinary interview, Spielbauer was admonished that although he had the right to remain silent, he was being ordered to answer questions as part of his employment, and that if he refused he would face possible termination for insubordination. Spielbauer was also advised that his compelled statements could not be used against him in any subsequent criminal proceedings. These advisements are often referred to as “Lybarger warnings,” after the California Supreme Court’s decision in Lybarger v. City of Los Angeles, 40 Cal.3d 822 (1985). In Lybarger, the Supreme Court held that under the Public Safety Officers Procedural Bill of Rights Act, a police officer in circumstances similar to Spielbauer must be given the admonishments before he could be discharged for insubordination.

Despite the Lybarger warning, Spielbauer refused to answer his employer’s questions and he was terminated for, among other things, insubordination. After exhausting his administrative remedies, Spielbauer sought a writ of administrative mandamus overturning his termination. He contended that the Fifth Amendment privilege against self-incrimination entitled him to refuse to answer the questions unless he received, in advance, a formal grant of criminal use immunity. The trial court upheld the dismissal, but the 6th District Court of Appeal reversed.

In its opinion overruling the Court of Appeal, the Supreme Court noted that the constitutional privilege against compelled self-incrimination in a criminal case does not mean that a public employee cannot be “compelled, upon threat of job discipline, to answer questions about his or her job performance, so long as the employee is not also required to surrender the constitutional privilege against criminal use of any statements thereby obtained.”

In overturning the Court of Appeal, the Supreme Court reasoned that public employees owe a “paramount” duty to their employers, and that public employers have an important interest in ensuring the proper performance of public duties. According to the Supreme Court, a requirement that an employer obtain a formal grant of immunity before it could compel its employee to answer questions would impede investigations into employee misconduct, and would undermine "the urgent administrative need to root out and eliminate misfeasance by public employees.”

Furthermore, the Supreme Court disputed the legal underpinnings of the Court of Appeal’s decision, finding that decades of state and federal case law allow an employer to compel an employee to answer job-related questions in a disciplinary investigation.

For example, the Supreme Court determined that the Court of Appeal had improperly concluded that the concepts of immunity and the right to exclusion from evidence in a criminal prosecution are two separate concepts that cannot be combined. The Supreme Court pointed out that in multiple opinions, the U.S. Supreme Court has used the concepts of immunity and the right to exclusion of evidence interchangeably.

The long-established key in these types of cases has been that an employee cannot be required by his or her employer to waive the constitutional privilege against the direct or derivative use of his or her statements in a subsequent criminal prosecution. That rule was most prominently stated in the U.S. Supreme Court’s decision in Garrity v. New Jersey, 385 U.S. 493 (1967). In that case, police officers were advised that if they did not waive their Fifth Amendment rights they would be fired. Then, their compelled statements were used against them in their own criminal prosecutions. In contrast, in Spielbauer, the employee was not asked to waive his Fifth Amendment rights and his statements were never used against him in any criminal proceedings.

In fact, in 2007, the 9th Circuit Court of Appeals held in Aguilera v. Baca, 510 F.3d 1161, that the Fifth Amendment rights of sheriff’s deputies were not violated when the deputies were reassigned to desk duty after refusing to answer investigators’ questions. None of the deputies were compelled to answer investigators’ questions and they were not asked to waive their Fifth Amendment rights. In a footnote, the majority explained: “If compelled, on the one hand, the officers automatically would be entitled to immunity for any incriminating statements they made. [Citation omitted.] If not under compulsion, on the other hand, then they had the constitutional right to remain silent without fear of punishment.” If immunity is automatic, then a formal grant of immunity is clearly not necessary, as had been suggested by the 6th District in Spielbauer.

For select public employees, some measure of the enhanced protections offered by Spielbauer may live on. For instance, the Firefighters Procedural Bill of Rights Act contains a provision requiring employers to provide a firefighter with a formal, written grant of immunity from prosecution before he or she can be compelled to respond to potentially incriminating questions about events occurring during the performance of his or her duties. That part of the act appeared after the Supreme Court had granted review in Spielbauer and the Court of Appeal’s decision was depublished. The Supreme Court referenced, but did not directly address this statutory provision in the act, nor did the court define what exactly constitutes a "formal" grant of immunity. As such, public employers must continue to adhere to the express provisions of the act for firefighters and provide formal, written grants of immunity from prosecution before compelling a firefighter to respond to potentially incriminating questions during an investigatory interview.

Otherwise, the California Supreme Court has made it clear that most public employees may be compelled to answer job-related though incriminating questions as long as they are not required to waive their rights against use of those statements in subsequent criminal proceedings. While the Supreme Court did not expressly hold that a Lybarger warning must be provided to civilian employees in this situation, the employer in Spielbauer did provide the plaintiff, a non-peace officer, with a Lybarger warning. Thus, to be safe, public employers should probably provide such a warning to any employee who is compelled to participate in an investigatory interview that may require the employee to make incriminatory statements.

J. Scott Tiedemann is a partner and Morin I. Jacob is of counsel at Liebert Cassidy Whitmore. Liebert Cassidy Whitmore exclusively defends employers in all aspects of labor and employment law, with particular focus in the public sector.