Supreme Court of California Justia
Citation 45 Cal. 4th 704, 199 P.3d 1125, 88 Cal. Rptr. 3d 590

Spielbauer v. County of Santa Clara

Filed 2/9/09

IN THE SUPREME COURT OF CALIFORNIA

THOMAS SPIELBAUER,
Plaintiff and Appellant,
S150402
v.
) Ct.App.
6
H029345
COUNTY OF SANTA CLARA et al.,
Santa Clara County
Defendants and Respondents. )
Super. Ct. No. CV031889
___________________________________ )

Plaintiff, a deputy public defender, was investigated by his employer, the
county, upon allegations that he had made deceptive statements to the court while
representing a criminal defendant. During each of several attempts to interview
plaintiff in the matter, a supervising attorney directed plaintiff to answer questions
about the incident, told plaintiff that his refusal to cooperate would be deemed
insubordination warranting discipline up to and including dismissal, but advised
plaintiff — accurately — that no use in a criminal proceeding (i.e., criminal use)
could be made of his answers. Nonetheless, on advice of counsel, plaintiff
declined to answer, invoking his privilege against compelled self-incrimination
under both the federal and state Constitutions. (U.S. Const., 5th Amend., cl. 3;
Cal. Const., art. I, § 15.) He was terminated from employment on grounds of the
deceptive court conduct, and for disobeying the employer’s orders to answer
questions.
1


Plaintiff sought mandate to obtain reinstatement, urging, among other
things, that he could not be compelled, on pain of dismissal, to answer potentially
incriminating questions unless he received, in advance, a formal grant of immunity
from direct or derivative use of his answers in any criminal case against him. The
trial court upheld the termination, but the Court of Appeal reversed. The appellate
court found substantial evidence that plaintiff had engaged in deceptive court
conduct. However, it agreed with plaintiff’s contention that, having invoked his
constitutional right against self-incrimination, he could not be compelled, by threat
of job discipline, to answer his employer’s questions unless his constitutional
privilege was first supplanted by an affirmative grant of criminal use immunity
coextensive with the constitutional protection. We granted review to address the
latter issue.
We conclude that the Court of Appeal erred. United States Supreme Court
decisions, followed for decades both in California and elsewhere, establish that a
public employee may be compelled, by threat of job discipline, to answer
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. Here, plaintiff was not ordered to choose between
his constitutional rights and his job. On the contrary, he was truthfully told that, in
fact, no criminal use could be made of any answers he gave under compulsion by
the employer. In the context of a noncriminal public employment investigation,
the employer was not further required to seek, obtain, and confer a formal
guarantee of immunity before requiring its employee to answer questions related
to that investigation.
Accordingly, we will reverse the judgment of the Court of Appeal.
2
FACTS AND PROCEDURE
In January 2003, plaintiff, a Santa Clara County deputy public defender,
represented Michael Dignan on charges of ammunition possession by a felon.
Troy Boyd had been arrested with Dignan, but not detained. Plaintiff proposed to
introduce, on Dignan’s behalf, Boyd’s statement to the police that his parents
owned the house where the ammunition was found, and he had rented it since he
was 19 years old. The apparent purpose of the proffered statement was to raise a
reasonable doubt about control of the area in which the contraband had been
discovered. But the statement’s efficacy for that purpose depended, as the Court
of Appeal noted, on its “ambiguity and incompleteness”; as Boyd later explained,
he did rent the house from his parents, but he sublet portions of it to others,
including Dignan. Thus, if Boyd were cross-examined on the witness stand, the
true context of his statement would likely be revealed.
The prosecutor moved in limine to exclude Boyd’s extrajudicial statement
as inadmissible hearsay. A hearing on the motion took place on Monday,
January 27, 2003, before Judge Tielh. The prosecutor argued the defense could
not claim Boyd’s unavailability as the basis for a hearsay exception, because there
was no evidence the defense had exercised due diligence to procure Boyd’s
presence at trial. When the court asked plaintiff what hearsay exception would
apply, plaintiff said he had not sent out an investigator to look for Boyd in part
because “Mr. Boyd has a warrant for his arrest. And if the San Jose Police are not
going to be able to find Mr. Boyd, I think that my investigator is going to be very
hard put to find an individual who is avoiding contact with anybody that has to do
with the judicial system.”
Plaintiff presented a $5,000 warrant for Boyd and argued that this met his
burden of showing Boyd was unavailable. Plaintiff urged that exclusion of
Boyd’s statement would deprive his client of a critical defense. Plaintiff further
3
represented that Boyd had experienced problems with the law and avoided all
contact with authority figures. Ultimately, the court ruled in limine that Boyd’s
hearsay statement would be admitted.
Plaintiff then requested the jury be instructed that Boyd was a fugitive, so
jurors would not wonder why he had failed to call Boyd. When the prosecutor
remarked that this was a good question, because plaintiff had exerted no effort to
find Boyd, plaintiff responded that he wanted to tell the jury he had not done so
because “[Boyd’s] got a warrant for his arrest and he’s ducking.” Plaintiff
indicated he intended to move the arrest warrant into evidence in order to explain
Boyd’s absence.
Three days after this court hearing, a police sergeant went to the house in
question, where he found Boyd. Boyd told the officer he had recently spoken to
“a public defender investigator.” Confronted in court with this information,
plaintiff indicated it was he who had spoken with Boyd. Plaintiff related that on
Sunday, January 26, 2003 — the day before he claimed in court that Boyd was an
unavailable fugitive — he went to the house to take photographs, where he found
Boyd with a group watching the Super Bowl. According to plaintiff, he carried no
subpoena because he did not expect Boyd to be there. Plaintiff also said Boyd had
indicated he would not cooperate in being served and did not wish to testify.
Plaintiff maintained that his accidental encounter with Boyd was “attorney work
product,” which he had no obligation to disclose.
The prosecutor argued that plaintiff had made an affirmative
misrepresentation to the court. Without ruling on this assertion, the court, per
Judge Tielh, determined that Boyd was an available witness, and that this would
be considered in passing upon any trial objection to the admission of Boyd’s
hearsay statement.
4
In late February or early March 2003, Chief Assistant Public Defender
David Mann learned of this incident. Mann was told that the prosecutor in the
Dignan case was getting transcripts in the matter and wanted “to ‘go after’
[plaintiff] in some fashion.” When Mann contacted the district attorney’s office,
he was advised that three options were being considered — to file misdemeanor
charges against plaintiff, to report him to the State Bar, or to “leave it to [the
Public Defender’s] office to handle.”
Deciding not to wait for the district attorney’s decision, Mann initiated an
internal investigation.1 On April 1, 2003, plaintiff appeared with his counsel,
Zacharias Ledet, for an interview in the matter. Also present were Joe Guzman,
supervisor of the felony division of the public defender’s office, and a
departmental investigator, Alayne Bolster. When Bolster asked plaintiff to
describe his conversation with Boyd, Ledet interjected that plaintiff refused to
answer on grounds of protection afforded him by the federal and state
Constitutions and the laws of California.
Guzman responded by addressing the following to plaintiff: “Tom, you
have a right to remain silent and not incriminate yourself. Your silence, however,
may be deemed insubordination, leading to administrative discipline up to and
including termination. Any statement made during this interview cannot, and
I emphasize cannot, be used against you in any subsequent criminal proceeding.
(Italics added.)

1
In May 2003, the district attorney did file a misdemeanor complaint
charging plaintiff with a deceit upon the court in violation of Business and
Professions Code section 6128. As the Court of Appeal related, “[a]lthough the
present record is incomplete on this point, plaintiff asserts that the action was
ultimately dismissed by stipulation.”
5


Ledet retorted that the protection against penal use asserted by Guzman
only applied to peace officers, and that Guzman’s advisement thus afforded
plaintiff no protection “unless you receive a ruling from a Court of Law.”
Guzman then stated he wanted to “make clear that this is not a criminal
proceeding. . . . This is an employee investigation . . . . What we do here stays
within the Public Defender’s Office. This is not going to be sent to the DA’s
Office, okay. What I’m saying is, . . . anything you say at this meeting cannot be
used against you in a criminal proceeding. So you are directed to answer the
questions and your refusal to answer the questions will be deemed as
insubordination.” These points were reiterated in full later in the interview.
Through Ledet, plaintiff continued to object.
A second interview, with Ledet present, occurred on April 10, 2003.
Guzman advised that, because this was an internal investigation, plaintiff “[did]
not have a right to refuse to answer,” and that such refusal would be
insubordination warranting discipline up to and including termination, but that
“any information [plaintiff] provides in this particular interview cannot and will
not be used against him in a criminal case.” Ledet responded that Guzman had
provided no authority for his assurances, and that cases cited in correspondence
between the parties were concerned only with peace officers.
At the conclusion of this meeting, Ledet asserted that Guzman had
exhausted his right under governing personnel policies to interview plaintiff, and
that further efforts to do so “would be unreasonable.” Ledet further stated that
plaintiff would continue to invoke his rights not to answer.
On June 9, 2003, Mann recommended plaintiff’s termination on three civil
service grounds: (1) insubordination (stemming from plaintiff’s refusal to answer
investigators’ questions), (2) gross misconduct unbecoming a county officer
(stemming from the Dignan incident), and (3) seeking, in violation of office rules
6
governing attorney ethics, to mislead a court by artifice or false statement.
Plaintiff sought a prediscipline administrative hearing. (See Skelly v. State
Personnel Bd. (1975) 15 Cal.3d 194, 215.) The hearing officer sustained the
charges and discipline, as did the county personnel board.
Plaintiff sought mandamus relief in the superior court. Among other
things, he insisted he could not be dismissed for refusing, on grounds of his
constitutional right against self-incrimination, to answer his employer’s potentially
incriminating questions unless he received, in advance, a formal grant of criminal
use immunity. The court denied the petition, ruling that substantial evidence
supported the charges and discipline, and that defendant was not entitled to formal
immunity before being compelled to answer his employer’s questions.
The Court of Appeal reversed. The appellate court found substantial
evidence supporting the charge that plaintiff’s representation of Dignan involved
deceptive conduct unbecoming a county officer and tending to discredit his
office.2 However, the court agreed with plaintiff’s contention that a public
employee must receive a formal grant of criminal use immunity before being
required, on pain of discipline, to answer potentially incriminating official
questions about his or her job performance.
Hence, the Court of Appeal held, the employer’s mere advisements and
assurances that plaintiff’s statements could not be used criminally were
insufficient to permit compulsion of his answers. The discipline imposed, the
court noted, was based in part on a finding — legally erroneous in the court’s view

2
The Court of Appeal also found unmeritorious plaintiff’s claims that he was
denied an impartial decision maker because both his Skelly hearing officer and the
county personnel board were burdened by conflicts of interest. Those issues are
not before us.
7


— of plaintiff’s insubordination for refusing to answer, and it was not clear he
otherwise would have been terminated. Accordingly, the Court of Appeal
reversed the superior court’s judgment with directions to issue a writ of mandamus
directing the county personnel board to vacate and reconsider its decision in light
of the views expressed.
We granted review, limited to the following issue: When a public
employee invokes his or her Fifth Amendment right against self-incrimination in a
public employer’s investigation of the employee’s conduct, must the public
employer offer immunity from any criminal use of the employee’s statements
before it can dismiss the employee for refusing to answer questions in connection
with the investigation?3 Turning to that question, we conclude that the answer is
no.
DISCUSSION
The Fifth Amendment to the United States Constitution declares that “[n]o
person . . . shall be compelled in any criminal case to be a witness against
himself . . . . ” (Italics added.) The California Constitution similarly provides that
“[p]ersons may not . . . be compelled in a criminal cause to be a witness against
themselves . . . .” (Cal. Const., art. I, § 15, italics added.)

3
Amicus curiae briefs addressing this issue have been filed in support of
respondent county by (1) the Attorney General of California, (2) the County of
Los Angeles, (3) the Sacramento County District Attorney, (4) the Peace Officer
Research Association of California Legal Defense Fund, (5) the California State
Sheriffs Association and the California Police Chiefs Association, and (6) the
California League of Cities, the California State Association of Counties, the
California School Boards Association and its Education Legal Alliance, and the
California Public Employers Labor Relations Association. The California
Teachers Association has filed an amicus curiae brief in support of plaintiff.
8


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 not to
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. (Lefkowitz v. Turley (1973) 414 U.S. 70, 77 (Turley); see
Kastigar v. United States (1972) 406 U.S. 441, 444-445 (Kastigar).) One cannot
be forced to choose between forfeiting the privilege, on the one hand, or asserting
it and suffering a penalty for doing so on the other. (Malloy v. Hogan (1964)
378 U.S. 1, 8.)
In many instances, of course, it is necessary or highly desirable to procure
citizens’ answers to official questions, including their formal testimony under
oath. In such circumstances, an individual’s invocation of the privilege against
self-incrimination would frustrate legitimate governmental objectives. In light of
the competing interests, it is well established that incriminating answers may be
officially compelled, without violating the privilege, when the person to be
examined receives immunity “coextensive with the scope of the privilege” — i.e.,
immunity against both direct and “derivative” criminal use of the statements.
(Kastigar, supra, 406 U.S. 441, 449-462; see Murphy v. Waterfront Comm’n
(1964) 378 U.S. 52, 54.) In such cases, refusals to answer are unjustified, “for the
grant of immunity has removed the dangers against which the privilege protects.
[Citation.]” (Kastigar, supra, at p. 449.)
Official compulsion, for purposes of the privilege, is not limited to court
process, and may include a public employer’s threat to dismiss an employee for
refusing to answer potentially incriminating questions. (Garrity v. New Jersey
(1967) 385 U.S. 493, 496-497 (Garrity).) Thus, the law is clear that incriminating
answers coerced from a public employee under threat of dismissal cannot be used
9
against the employee in a criminal proceeding. (Id., at p. 500.) This is so even
where the employee received no advance grant of formal immunity. (See id., at
p. 495.)
On the other hand, the constitutional privilege against compelled self-
incrimination in a criminal case or cause (U.S. Const., 5th Amend.; Cal. Const.,
art. I, § 15) does not protect against the nonpenal adverse use of officially
compelled answers. (E.g., Segretti v. State Bar (1976) 15 Cal.3d 878, 886-887;
Blackburn v. Superior Court (1993) 21 Cal.App.4th 414, 426.) Thus,
incriminating answers given by a public employee under threat of job sanction for
refusal to answer may themselves form the basis for job discipline, including
termination, so long as the employee has requisite protection against the criminal
use of such statements.
The United States Supreme Court has been less than clear about the
minimum circumstances under which one may be officially compelled, over his or
her constitutional objection, to give incriminating answers for nonpenal use. In
Adams v. Maryland (1954) 347 U.S. 179 (Adams), a federal statute provided that
testimony before a congressional committee could not be used criminally against
the witness. Nonetheless, the defendant, who had been summoned to answer
questions before a Senate investigating committee, was convicted of Maryland
charges on the basis of his confession before the committee that he ran a gambling
business in that state.
Seeking to uphold the conviction, the state urged, among other things, that
the defendant had waived the statutory protection by failing, before the committee,
to claim his constitutional privilege against self-incrimination. The high court
responded that “no language of the [statute] requires such a claim in order for a
witness to feel secure that his testimony will not be used to convict him of a
crime.” (Adams, supra, 347 U.S. 179, 181.) Indeed, the court noted, such an
10
interpretation would render the statute superfluous, for “a witness does not need
any statute to protect him from the [criminal] use of self-incriminating testimony
he is compelled to give over his objection. The Fifth Amendment takes care of
that without a statute.” (Ibid., italics added.)
However, other Supreme Court cases contain language that might suggest
that one subjected to coercive official questioning in a noncriminal setting may
insist on the constitutional privilege, without fear of sanction, until the privilege is
supplanted, and thus removed, by the authorized grant or conferral of an
“immunity” coextensive with the privilege itself. (E.g., Chavez v. Martinez (2003)
538 U.S. 760, 771 (plur. opn. of Thomas, J.) (Chavez) [witness may insist on
immunity agreement before being compelled to give testimony in noncriminal
case]; Lefkowitz v. Cunningham (1977) 431 U.S. 801, 806 (Cunningham)
[“government cannot penalize assertion of the constitutional privilege against
compelled self-incrimination by imposing sanctions to compel testimony which
has not been immunized”]; Turley, supra, 414 U.S. 70, 78 [“witness protected by
the privilege may rightfully refuse to answer unless and until he is protected at
least against the use of his compelled answers and evidence derived therefrom in
any subsequent criminal case in which he is a defendant”]; Stevens v. Marks
(1966) 383 U.S. 234, 246 [witness has “constitutional right to stand on the
privilege against self-incrimination until it has been fairly demonstrated to him
that an immunity, as broad in scope as the privilege it replaces, is available and
applicable to him”].)
Several cases have squarely held that persons could not be sanctioned
when, in noncriminal proceedings, they invoked the constitutional privilege to
refuse to answer official questions, or to produce materials potentially subject to
the privilege, even though they received official assurances that no criminal use of
the evidence sought was contemplated, and even though they could move to
11
suppress the evidence produced if the prosecution later attempted such criminal
use. (E.g., Maness v. Meyers (1975) 419 U.S. 449, 452, 461-463 [one served with
subpoena for production of sexually explicit magazines as evidence for civil
injunction against distribution of obscene materials was not required to let “cat out
of the bag” before testing whether his invocation of Fifth Amendment privilege
was valid]; but see id., at p. 475 (conc. opn. of White, J.) [formal immunity is
“functional equivalent” of rule that neither incriminating answers nor their fruits
can be used criminally]; see United States v. Doe (1983) 465 U.S. 605 (Doe)
[before compelling citizen’s production, over Fifth Amendment objection, of
potentially incriminating business records for nonpenal purpose, government must
follow strict procedures of statute allowing United States Attorney to seek court-
conferred criminal use immunity; prosecutor’s informal promise not to use
materials criminally is insufficient; statute is intended to require government to
balance interest in obtaining material against risk of hindrance to future
prosecution if immunity is granted]; Pillsbury Co. v. Conboy (1983) 459 U.S. 248
(Conboy) [deponent questioned in civil case about content and truth of his
previously immunized federal grand jury testimony could not be held in contempt
for invoking Fifth Amendment rights at deposition; deponent was not required to
rely on mere predictive judgment that, in any subsequent criminal prosecution
against him, court would suppress civil deposition testimony as covered by prior
immunity]; see also Marchetti v. United States (1968) 390 U.S. 39 (Marchetti)
[professional bookmaker subject to special tax on proceeds of illegal wagering
could not be convicted of violating registration provisions of Internal Revenue
Code over defense that compliance would require self-incrimination; Supreme
Court would not clear way for enforcement of registration provisions by judicially
imposing restrictions on criminal use of information derived, since Congress, not
courts, should balance criminal versus revenue-producing uses of registration
12
requirement]; cf. Byers v. Justice Court (1969) 71 Cal.2d 1039 (Byers) [absent
prior judicial rule conferring criminal use immunity, one involved in auto collision
could not be convicted for leaving accident scene without disclosing self-
identifying information, as required by hit-and-run law; though purpose of
disclosure statute was to protect accident victims from financial loss, required
disclosures were potentially self-incriminatory].)4
California statutes set forth various circumstances in which persons whose
potentially incriminating statements are required for reasons other than criminal
prosecution are, or may or must be, afforded immunity from the criminal use of, or
prosecution for, the immunity matters discussed in their compelled answers. (See,
e.g., Pen. Code, § 1324 [prosecutor may request judicial immunity for witness in
felony proceeding]; Gov. Code, § 3253, subd. (e)(1), as added by Stats. 2007,
ch. 591, § 2 [firefighter must receive formal written offer of criminal transactional
immunity before being required to answer employer’s incriminating questions];
id., §§ 18676, 18677 [one called to testify in civil service investigation by State
Personnel Board cannot be excused on grounds of self-incrimination privilege if
granted criminal transactional or use immunity]; id., § 83119 [one compelled, over
self-incrimination objection, to testify before Fair Political Practices Commission
has criminal transactional immunity with respect to matters disclosed]; Corp.
Code, § 25531, subd. (e) [person compelled, over self-incrimination objection, to

4
The judgment in Byers was vacated, and the cause remanded, in
California v. Byers (1971) 402 U.S. 424. The high court majority held that
facially neutral disclosure requirements contained in regulatory statutes such as
California’s accident-disclosure law, where the criminal implications are not
substantial, do not violate the Fifth Amendment.
13


testify before Corporations Commissioner in securities-fraud investigation has
criminal transactional immunity with respect to matters disclosed].)
Plaintiff and the Court of Appeal thus have derived the premise that
“immunity,” on the one hand, and the right to exclusion from evidence in a
subsequent prosecution, on the other, are two separate concepts that may not be
conflated. As the Court of Appeal reasoned, one subjected to coercive official
questioning in a noncriminal setting is constitutionally privileged to refuse to
answer unless personally immunized, and, if personal immunity is denied, or is
unavailable from an authorized source, the person cannot be sanctioned for
remaining silent, but if one does speak under official compulsion, without the
protection of formal immunity, the Constitution nonetheless prohibits direct or
derivative use of the statements in a criminal prosecution against the declarant.
Whatever the general merits of this principle, federal and California courts
have taken a different tack in cases involving noncriminal investigations of the job
performance of public employees. Given the paramount duty of public employees
to their employers, and the importance of ensuring the proper performance of
public duties, the decisions consistently indicate that a public employee may 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.
As we will explain, the United States Supreme Court has explicitly stated
that the Fifth Amendment does not prevent a public employer from disciplining an
employee who refuses to answer official job-related questions, where there is no
further requirement that the employee forfeit the privilege against self-
incrimination and agree that the answers thus compelled may be used in a criminal
prosecution against the employee. The court has never held, in the context of a
noncriminal investigation of public employee job performance, that an employee
14
must be offered formal immunity from criminal use before being compelled, by
threat of job discipline, to answer questions on that subject.
Lower federal courts, and California courts other than the instant Court of
Appeal, have thus consistently concluded that the Constitution does not require a
public employer to obtain and provide an affirmative grant of criminal use
immunity before using the threat of job discipline to compel answers from its
employee in the course of an investigation of job performance. Rather, these cases
hold, the employee may be punished for refusal to answer the employer’s job-
related questions if he or she is not required to surrender the constitutional
privilege against criminal use of the statements thereby obtained. Over four
decades, the Supreme Court has declined numerous opportunities to overturn these
decisions. No reason appears to depart from the rule thus well established.
Thus, in Garrity, police officers were questioned by the state attorney
general’s office, which was acting pursuant to broad court-conferred authority to
investigate the fixing of traffic tickets. A state statute called for the forfeiture of
public employment by one who invoked the Fifth Amendment, or refused to
waive immunity, in response to official questioning about his or her job
performance. Accordingly, each officer was warned that anything he said could
be used against him in a criminal prosecution, that he could refuse, on grounds of
his constitutional privilege, to provide self-incriminating answers, but that if he
did so, he would be dismissed. In other words, the officers were told that unless
they waived their constitutional right against self-incrimination, they would lose
their jobs.
Though preserving their constitutional objections, the officers answered,
and their answers were used to convict them of conspiracy to obstruct
administration of the traffic laws. Deeming the answers coerced, the high court
reversed the convictions, holding that the Fifth Amendment right against self-
15
incrimination, as incorporated in the Fourteenth Amendment, “prohibits use in
subsequent criminal proceedings of statements obtained under threat of removal
from office . . . .” (Garrity, supra, 385 U.S. 493, 500.)
Subsequent to Garrity, in two cases decided the same day, the high court
provided additional insight about the Fifth Amendment rights of public employees
under investigation in connection with their job performance. In the first case,
Gardner v. Broderick (1968) 392 U.S. 273 (Gardner), a New York City police
officer subpoenaed before a grand jury prior to the Garrity decision was asked to
sign a waiver of his privilege against self-incrimination. Pursuant to provisions of
the New York Constitution and the city charter, he was told his refusal to do so
would lead to his discharge from public employment. When he refused to sign the
waiver, he was fired, and he sought reinstatement. The state court dismissed his
petition. The Supreme Court reversed, holding that the privilege against self-
incrimination “does not tolerate the attempt, regardless of its ultimate
effectiveness, to coerce a waiver of the immunity it confers on penalty of the loss
of employment.” (Id., at p. 279, italics added.)
Arguing for a contrary result, the city sought, among other things, to
distinguish Spevack v. Klein (1967) 385 U.S. 511, decided the same day as
Garrity. Spevack held that an attorney could not be disbarred solely for refusing,
on grounds of his privilege against self-incrimination, to testify at a disciplinary
hearing. In Gardner, the city asserted that different considerations should apply
“in the case of a public official such as a policeman.” (Gardner, supra, 392 U.S.
273, 277.) “Unlike the lawyer,” the city argued, the public officer “is directly,
immediately, and entirely responsible to the city or State which is his employer.
He owes his entire loyalty to it. He has no other ‘client’ or principal. He is a
trustee of the public interest, bearing the burden of great and total responsibility to
16
his public employer. Unlike the lawyer who is directly responsible to his client,
the policeman is either responsible to the State or to no one.” (Id., at pp. 277-278.)
“We agree,” the Gardner court responded, “that these factors differentiate
the situations. If appellant, a policeman, had refused to answer questions
specifically, directly, and narrowly relating to the performance of his official
duties, without being required to waive his immunity with respect to the use of his
answers or the fruits thereof in a criminal prosecution of himself, . . . the privilege
against self-incrimination would not have been a bar to his dismissal.” (Gardner,
supra, 392 U.S. 273, 278, fn. & citation omitted, italics added.)
The second case, Sanitation Men v. Sanitation Comm’r. (1968) 392 U.S.
280 (Sanitation Men I), concerned a New York City commission’s investigation,
again prior to the Garrity decision, of suspected corrupt acts by city sanitation
employees. Fifteen suspected employees were called to testify before the
commission. Pursuant to the city charter, they were told that if they invoked the
privilege against self-incrimination to avoid testifying about their own job
conduct, or that of other employees, they would be discharged. Twelve of the
employees refused to testify before the commission and, on that sole ground, were
dismissed. Three answered questions, denying the charges against them.
Subsequently, these three were summoned before a grand jury and asked to sign
waivers of immunity. They refused, and were then dismissed for that sole reason.
The court of appeals upheld the dismissals. However, the Supreme Court
reversed on the grounds elaborated in Gardner, holding again that the Fifth
Amendment forbids dismissal from public employment for refusal to surrender the
privilege against self-incrimination. Nonetheless, the high court observed, “As we
stated in Gardner . . . , if New York had demanded that petitioners answer
questions specifically, directly, and narrowly relating to the performance of their
official duties on pain of dismissal without requiring relinquishment of the benefits
17
of the constitutional privilege, and if they had refused to do so, this case would be
entirely different. In such a case, the employee’s right to immunity as a result of
his compelled testimony would not be at stake.” (Sanitation Men I, supra,
392 U.S. 280, 284, italics added.) The court made clear that public employees,
like all other citizens, are entitled to the privilege against self-incrimination.
Nonetheless, the court cautioned, “petitioners, being public employees, subject
themselves to dismissal if they refuse to account for their performance of their
public trust, after proper proceedings, which do not involve an attempt to coerce
them to relinquish their constitutional rights.” (Id., at p. 285, italics added.)
As a consequence of the decision in Sanitation Men I, the public employees
at issue in that case were reinstated. Thereafter, they were recalled to appear
before a senior city sanitation official. Before being questioned on this occasion,
each of the employees — all of whom were represented by counsel — was
advised by the official that the employee had all rights guaranteed by New York
law and the federal and state Constitutions, and that these included the right to
remain silent, although refusal to answer material and relevant questions about his
job conduct might subject the employee to disciplinary action. Each employee
was further told, in light of Garrity, Gardner, and Sanitation Men I, that any
answers he gave could not be used in a criminal prosecution against him, except a
perjury prosecution stemming from the falsity of any answers. Beyond this
advisement, the employees received no formal grant or offer of criminal
immunity.
Again the employees refused to answer substantive questions about their
participation in the suspected corrupt scheme. Accordingly, they were suspended
and, ultimately, dismissed.
In the employees’ federal reinstatement action, both parties moved for
summary judgment. The district court granted the employees’ motion and denied
18
the city’s. The court concluded that under New York’s criminal procedure
statutes, the city lacked authority to confer any form of criminal immunity
necessary to supplant the Fifth Amendment privilege and permit the city to
compel the employees’ answers on pain of dismissal.
In Uniformed S.M. Ass’n, Inc. v. Commissioner of S. of N.Y. (2d Cir. 1970)
426 F.2d 619 (Sanitation Men II), the federal court of appeals reversed. The court
reasoned that there need be no statute conferring the criminal use immunity
required to discharge a public employee who refuses, on self-incrimination
grounds, to answer job-related questions. The court asserted that, in Garrity, “the
very act of the attorney general in telling the witness that he would be subject to
removal if he refused to answer was held to have conferred such immunity,” and
in Adams, the high court observed that when one is compelled to give a self-
incriminating statement, the Fifth Amendment confers immunity directly, without
the necessity of a statute. (Sanitation Men II, supra, at p. 626.)
In any event, the court noted that in Gardner, “Justice Fortas stated in so
many words that if a public officer is asked about performance of his official
duties and is not required to waive immunity, the privilege is not a bar to his
dismissal for refusal to answer. [Justice Fortas] said nothing about a statutory
grant of immunity[,] and the citation of Garrity [in the Gardner opinion] shows
why nothing needed to be said. . . . The proceeding here involved no attempt to
coerce relinquishment of constitutional rights, because public employees do not
have an absolute constitutional right to refuse to account for their official actions
and still keep their jobs; their right, conferred by the Fifth Amendment itself, . . . is
simply that neither what they say under such compulsion nor its fruits can be used
against them in a subsequent prosecution.” (Sanitation Men II, supra, 426 F.2d
619, 627, italics added.)
19
Accordingly, the federal court of appeals ordered the federal district court
to enter summary judgment for the city. With only Justice Douglas’s dissenting
vote, the United States Supreme Court denied certiorari. (Uniformed Sanitation
Men Assn., Inc., et al. v. Commissioner of Sanitation of the City of New York, et al.
(1972) 406 U.S. 691.)
Consistent with Sanitation Men II, many lower federal court cases have
since held that the Fifth Amendment does not require a formal, affirmative grant
of immunity before a public employee may be dismissed for his or her blanket
refusal to answer official questions about performance of the employee’s public
duties, so long as the employee is not required to surrender the constitutional
privilege against the direct or derivative use of his or her statements in a
subsequent criminal prosecution. (E.g., Aguilera v. Baca (9th Cir. 2007) 510 F.3d
1161, 1171-1172, cert. denied (2008) ___ U.S. ___ [129 S.Ct. 487] (Aguilera);
Hill v. Johnson (8th Cir. 1998) 160 F.3d 469, 471; Harrison v. Wille (11th Cir.
1998) 132 F.3d 679, 683; Wiley v. Mayor and City Council of Baltimore (4th Cir.
1995) 48 F.3d 773, 777, cert. denied, 516 U.S. 824; Arrington v. County of Dallas
(5th Cir. 1992) 970 F.2d 1441, 1446; Hester v. City of Milledgeville (11th Cir.
1985) 777 F.2d 1492, 1496; see Weston v. U.S. Dept. of Housing & Urban Dev.
(Fed. Cir. 1983) 724 F.2d 943, 947-948 (Weston); Gulden v. McCorkle
(5th Cir. 1982) 680 F.2d 1070, 1073-1074, cert. denied (1983) 459 U.S. 1206;
Confederation of Police v. Conlisk (7th Cir. 1973) 489 F.2d 891, 894-895, cert.
denied sub nom. Rochford v. Confederation of Police (1974) 416 U.S. 956
(Confederation of Police).)
California cases postdating Garrity, Gardner, and Sanitation Men I
including decisions of this court — are to similar effect. In Szmaciarz v. State
Personnel Bd. (1978) 79 Cal.App.3d 904, a corrections officer faced
administrative charges for bringing marijuana cigarettes into the prison.
20
Questioned at his disciplinary hearing, he invoked the Fifth Amendment, and was
nonetheless ordered to answer, receiving no offer of immunity in the process. He
did respond under protest, admitting he carried the contraband into the facility. He
received a seven-month suspension. He sought mandamus to overturn the
suspension, claiming he should have been allowed at the hearing to exercise his
privilege against self-incrimination. The Court of Appeal disagreed. Citing the
pertinent United States Supreme Court decisions, the court held that he could be
compelled, for disciplinary purposes, to answer questions pertaining to his job
performance, although no criminal use could be made of his answers. (Id., at
pp. 917-918.)
In Kelly v. State Personnel Bd. (1979) 94 Cal.App.3d 905, a state
criminalist was terminated for refusing to provide requested information during an
internal investigation of allegations that he supplied illegal drugs, including some
from evidence, to a third person. He had been advised that any information he
provided could not be used against him in a criminal prosecution. His petition for
mandate, seeking reinstatement, was denied, and the Court of Appeal affirmed.
Justice Reynoso’s opinion noted that the appeal involved only associational and
privacy issues, not the petitioner’s Fifth Amendment rights. On the latter score,
Justice Reynoso observed, “[i]t is settled that a public employee may be required
to answer questions relative to his fitness for his employment if his answers cannot
be used against him in a subsequent criminal proceeding. [Citation.] If the
employee still refuses to answer questions relevant to his official duties then he
may be dismissed. [Citation.]” (Id., at p. 911.)
In Lybarger v. City of Los Angeles (1985) 40 Cal.3d 822 (Lybarger), a
police officer, Lybarger, was interviewed by the department’s internal affairs
division, which was investigating serious allegations of misconduct in his unit. He
was advised that a criminal investigation was also pending, and that refusal to
21
cooperate with the internal affairs inquiry would be insubordination, which might
lead to dismissal. He was then ordered to answer questions and refused to do so.
At a subsequent disciplinary hearing, he testified he acted on advice of counsel.
He was terminated for disobeying the order. The superior court denied his petition
for mandate seeking reinstatement.
On appeal, Lybarger asserted violations of his rights under the Public
Safety Officers Procedural Bill of Rights Act (Gov. Code, § 3300 et seq.). He
pointed out that Government Code section 3304, subdivision (a) forbids “punitive
action” against an officer for “lawful[ly] excercis[ing] . . . the rights granted under
this chapter,” which rights included, under Government Code section 3303, former
subdivision (g) (now subdivision (h)), the right immediately to be informed of his
constitutional rights “[i]f prior to or during the interrogation . . . it [was] deemed
that he [might] be charged with a criminal offense . . . .”
Under this scheme, Lybarger asserted, he could not be disciplined solely by
reason of his exercise of his constitutional right to remain silent. Moreover, he
insisted, he had been denied his statutory right to be advised of his constitutional
rights where it was “deemed” that criminal charges might be filed.
Addressing the first issue, the majority made clear that Lybarger “had
neither a constitutional nor a statutory right to remain silent free 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. [Citing Turley, supra, 414 U.S. 70, 77-79, and
Garrity, supra, 385 U.S. 493, 500.]” (Lybarger, supra, 40 Cal.3d 822, 827, italics
added.)
22
On the other hand, the majority then held that Lybarger’s interrogators had
violated his statutory right to an advisement that he had a constitutional right to
remain silent, subject to disciplinary action for doing so, but that his statements
obtained under threat of discipline could not be used against him in a criminal
prosecution. The omission of such an advisement, the majority concluded, was
prejudicial, and Lybarger’s dismissal for refusing to answer questions was
therefore invalid. (Lybarger, supra, 40 Cal.3d 822, 828-830.)
In Williams v. City of Los Angeles (1988) 47 Cal.3d 195 (Williams), we
addressed a similar police internal investigation involving Lybarger’s partner,
Officer Williams. We reiterated our conclusion that the Constitution gives a
public employee no absolute right to refuse to answer incriminating employer
questions, but instead adequately protects the employee’s rights by precluding use
of any compelled statements in aid of a criminal prosecution. (Id., at p. 199.)
Like Lybarger, Williams also claimed his statutory advisement rights had been
violated. Unlike Lybarger, however, Williams had answered the questions posed
to him, and had been dismissed on the basis of the incriminating information he
provided. This court concluded that omission of the statutory advisement, though
improper, did not warrant invalidating Williams’s dismissal for admitted
misconduct on duty. (Id., at pp. 201-206.)5

5
As noted, Lybarger and Williams confirmed that by virtue of a statute
applicable specifically to peace officers (Gov. Code, § 3303, subd. (h) (formerly
subd. (g))), such an officer, before being required to answer an employer’s
investigatory questions, must be informed of his or her constitutional rights if
there appears a possibility the officer will be charged with a criminal offense.
(Lybarger, supra, 40 Cal.3d 822, 828-829; Williams, supra, 47 Cal.3d 195, 200-
201.) In a concurring opinion in Lybarger, Chief Justice Bird argued that the right
to an appropriate admonition might itself be constitutional in nature. (Lybarger,
supra, at pp. 833-834 (conc. opn. of Bird, C.J.).) Several federal courts of appeal
have suggested that, although the federal Constitution does not require formal
(Footnote continued on next page.)
23


Finally, in Long Beach City Employees Assn. v. City of Long Beach (1986)
41 Cal.3d 937 (Long Beach), we addressed a statute requiring every nonsafety
public employee to undergo polygraph testing that involved intrusive, wide-
ranging questions about the employee’s childhood, past drug use, history of petty
crimes, and the like. We accepted plaintiff employees’ contention that this testing
violated the California constitutional right of privacy. Nonetheless, we restated, as
“correct,” the Gardner rule that “a public employee may be required — on pain of
dismissal — to answer questions ‘specifically, directly, and narrowly relating to
the performance of his official duties.’ [Citations.]” (Id., at p. 947.) Thus, we
said, “[i]f the City had demanded only that its employees answer questions
pertaining directly to performance of their duties upon pain of dismissal, without
using the intrusive intermediary of polygraph testing, then this case would be
entirely different. [Citation.]” (Ibid.)
We are therefore persuaded that neither the federal nor the California
constitutional privilege against compelled self-incrimination requires a public
employer to provide its employee with a formal grant of criminal use immunity
before it can require the employee, upon threat of job discipline, to answer
questions relating to the employee’s job performance. On the contrary, the
employer may discipline, and even dismiss, a public employee for refusing, on

(Footnote continued from previous page.)

immunity for public employees before they must answer their employers’
questions, it may require appropriate advisements that the compelled answers may
not be used against the employees in criminal prosecutions. (See, e.g., Weston,
supra, 724 F.2d 943, 948; Confederation of Police, supra, 489 F.2d 891, 894;
Sanitation Men II, supra, 426 F.2d 619, 627; but see Aguilera, supra, 510 F.3d
1161, 1172, fn. 6.) We need not decide that issue here, however, for it is
undisputed that such advisements were given in the case at hand.
24


grounds of the constitutional privilege, to answer the employer’s job-related
questions, so long as the employee is not required, as a condition of remaining in
the job, to surrender his or her right against criminal use of the statements thus
obtained — at least where, as here, the employee is specifically advised that he or
she retains that right. (See fn. 5, ante.)
As the high court suggested in Gardner, the competing public and personal
interests are best reconciled by such a rule. 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. (Long Beach, supra, 41 Cal.3d 937,
952.) 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. (See discussion,
post.) 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.
Indeed, as the instant Court of Appeal conceded, it is not clear how the
public employer could even obtain such a formal grant of immunity. No
constitutional or statutory provision specifically authorizes any official or public
agency to confer such a legally binding guarantee under these circumstances.6

6
Plaintiff urges that such authority may be found in Penal Code section
1324, which authorizes a district attorney or other prosecuting agency to request a
judicial order granting a witness transactional or use immunity under certain
circumstances. But when the section is read in context, it clearly applies only in
“felony proceeding[s]” or “proceeding[s] before a grand jury for any felony
(Footnote continued on next page.)
25


The employer’s ability to investigate an employee’s performance of his or her
public responsibility cannot be hamstrung, as a matter of constitutional law, by
such concerns.7
Despite these considerations, the Court of Appeal cited several grounds for
its insistence that formal immunity is required in such cases. For example, the
court noted that in Turley and Cunningham, public employee cases decided after
Gardner and Sanitation Men I, the high court adhered to language suggesting that,
unless previously immunized, and aside from any exclusionary rule, one cannot be
compelled, over invocation of the Fifth Amendment privilege, to give self-
incriminating answers to official questions. (See Turley, supra, 414 U.S. 70, 78;
Cunningham, supra, 431 U.S. 801, 805-806.)
For several reasons, those decisions do not support the Court of Appeal’s
position. Like Garrity, Gardner, and Sanitation Men I, both Turley and
Cunningham involved statutes providing that public employees and public
contractors would forfeit those positions unless they agreed to waive their Fifth
Amendment privileges when called as witnesses before a grand jury. Neither case
involved a public employer that sought only to call its own employee to account,

(Footnote continued from previous page.)

offense.” (Ibid.) The statute does not, by its terms, empower the prosecutorial
authorities, or a court, to confer advance immunity on a public employee simply
because the latter is refusing, on grounds of the privilege against self-
incrimination, to answer the employer’s job-related questions.
7
The Court of Appeal considered whether courts have, and should exercise,
an inherent unilateral power to confer, or declare, an immunity in such cases.
However, the court declined to exercise any such power, concluding it would
interfere with the ability of prosecutors to decide, on a case-by-case basis, whether
criminal investigations would be unduly hindered by conferring immunity on
employees who were resisting employer inquiries. (See further discussion, post.)
26


while assuring the employee that any statements thereby obtained could not be
used criminally against the worker. Thus, no issue of prior immunity was before
the court in either instance. Nonetheless, citing Gardner, the court in Cunningham
reiterated that “[p]ublic employees may constitutionally be discharged for refusing
to answer potentially incriminating questions concerning their official duties if
they have not been required to surrender their constitutional immunity.”
(Cunningham, supra, 431 U.S. 801, 806, italics added; see Chavez, supra,
538 U.S. 760, 768 (plur opn. of Thomas, J.).)
The Court of Appeal also reasoned that sole reliance on an exclusionary
rule to protect a public employee’s rights against self-incrimination creates a
logical paradox. An exclusionary rule, the court posited, is intended to prevent the
criminal use of illegally compelled statements, not to legalize what would
otherwise be the unconstitutional compulsion of self-incriminatory utterances.
But this premise is exaggerated, if not entirely mistaken. The state and
federal self-incrimination clauses say one cannot be made an involuntary witness
against himself, or herself, in a criminal proceeding. Thus, they do not prohibit
officially compelled admissions of wrongdoing as such. They only forbid the
criminal use of such statements against the declarant. Constitutionally based
prophylactic rules, such as a prior-immunity requirement in some cases, have
arisen to protect the core privilege, but the right against self-incrimination is not
itself violated until statements obtained by compulsion are used in criminal
proceedings against the person from whom the statements were obtained.
(Chavez, supra, 538 U.S. 760, 767-773 (plur. opn. of Thomas, J.); see also id., at
p. 777-778 (conc. opn. of Souter, J.).)
As the high court has made clear, the Constitution affords a public
employee no right to refuse to account for his or her job performance, or to avoid
dismissal as punishment for such a refusal. It simply forbids use of the compelled
27
statements, or the fruits thereof, in a criminal prosecution against the employee.
When a public employer demands job-related information from its employee,
while advising that the employee does not thereby surrender the constitutional
right against use of the information in a subsequent criminal prosecution, the
employer acts legally. In such circumstances, the employee’s constitutional right
against self-incrimination is thus directly and precisely satisfied “by precluding
any use of his statements at a subsequent criminal proceeding. [Citations.]”
(Lybarger, supra, 40 Cal.3d 822, 827.)
Finally, the Court of Appeal expressed special concern about a rule that, in
essence, would allow a public employer to confer automatic, unilateral criminal
use immunity on its employee by compelling the employee to make self-
incriminating statements in the course of an internal disciplinary investigation.
The Court of Appeal worried that, by placing immunity control in the employer’s
hands alone, such an approach might unfairly hinder prosecutors’ later attempts to
pursue criminal charges against the employee. This is because the prosecution,
despite its lack of participation in the decision to grant immunity, would
nonetheless shoulder, as its “heavy burden” (Kastigar, supra, 406 U.S. 441, 461),
“the affirmative duty to prove [in any such criminal case] that the evidence it
propose[d] to use [was] derived from a legitimate source wholly independent of
the compelled testimony” (id., at p. 460).
For several reasons, we are not persuaded. At the outset, we note that
whether the Constitution forbids the dismissal of a public employee for refusing to
answer potentially incriminating questions from an employer that demands no
surrender of criminal immunity is distinct from the practical difficulties a
prosecutor might later encounter in pursuing a criminal case. The issue before us
— whether plaintiff’s termination for refusal to answer his employer’s questions
was constitutionally permissible — does not directly implicate the latter problem.
28
We realize that, in some cases, courts have pointed to prosecutorial interests
as grounds to refrain from inferring a criminal use immunity that would supplant
the constitutional privilege and allow the government to compel incriminating
disclosures in noncriminal settings. Thus, in Conboy, supra, 459 U.S. 248, and
Doe, supra, 465 U.S. 605, the high court concluded that a federal statute gave
certain Department of Justice officials the exclusive power to seek criminal use
immunity, and was intended thereby to require the government, in each individual
case, to balance its prosecutorial needs against other interests before compelling
constitutionally protected disclosures. Similarly, in Marchetti, supra, 390 U.S. 39,
the court indicated that it was for Congress, not the courts, to decide whether the
income tax registration laws governing illegal wagering activities served revenue
or criminal enforcement purposes. And in Daly v. Superior Court (1977)
19 Cal.3d 132, we declined to find that courts, without any participation by the
People, have the inherent power to immunize, and then compel, potentially
incriminating deposition answers demanded in a wrongful death lawsuit between
private parties.
On the other hand, in Byers, we imposed a prospective rule of criminal use
immunity for potentially incriminatory accident-scene disclosures required by
California hit-and-run laws, thus allowing punishment of drivers who thereafter
failed to provide such disclosures. Balancing the competing interests, we
adjudged that “criminal prosecutions of drivers involved in accidents will not be
unduly hampered” by such a rule (Byers, supra, 71 Cal.2d 1039, 1056), and that
the Legislature, which enacted the disclosure provisions to protect accident
victims against financial loss, would prefer that purpose to be upheld despite the
incidental effects on criminal enforcement of the traffic laws (id., at p. 1055).
And in People v. Superior Court (Kaufman) (1974) 12 Cal.3d 421, we held
that a court, using its powers under the civil discovery statutes, could grant
29
appropriate immunity to allow the State of California, in its civil action claiming
violations of the unfair competition law, to compel relevant deposition answers.
We reasoned that an immunity order in a civil enforcement action by the state
itself “would not frustrate but would further the legislative purpose of suppressing
deceptive advertising. Nor would it unduly hamper the prosecution of persons
who, in the judgment of the authorities, should be subjected to criminal
proceedings. [Citations.]” (Id., at pp. 428-429.)
Similarly here, the competing interests favor the settled rule that, absent a
contrary statute, a public employer, acting for noncriminal reasons, may demand
answers from its own employee about the employee’s job conduct and may
discipline the employee’s refusal to cooperate, without first involving the
prosecuting authorities in a decision about granting formal immunity. The vast
majority of such cases are unlikely to have criminal implications; on the other
hand, the public employer must be able to act promptly and freely, in its
administrative capacity, to investigate and remedy misconduct and breaches of
trust by those serving on the public payroll. This strong interest outweighs the
incidental effect on enforcement of criminal laws that may arise from the rule that
statements thus compelled by the employer cannot be used in aid of a later
criminal prosecution against the employee.8
Accordingly, we confirm that neither the federal nor the California
Constitution allowed plaintiff, free of any sanction, to refuse to answer his

8
In amicus curiae briefs supporting the county, the Attorney General, the
California State Sheriffs’ Association and the California Police Chiefs
Association, and the Sacramento County District Attorney all agree with this view.
In particular, the latter officer notes that methods are available to prevent a public
employee’s prior compelled incriminating statements from tainting a subsequent
criminal prosecution.
30


employer’s questions about his possible job misconduct unless and until he
received, in advance, a formal grant of immunity from subsequent criminal use of
his statements. Here, as noted, plaintiff’s employer did not require him to waive
his constitutional privilege against such criminal use. On the contrary, plaintiff
was accurately advised, on more than one occasion, that any statements he made
under compulsion in connection with the employer’s internal disciplinary
investigation could not be used against him in a criminal case. Under these
circumstances, plaintiff’s dismissal, insofar as based on disobedience of the
employer’s order to answer questions, was constitutionally valid. To the extent
the Court of Appeal held otherwise, its judgment must be reversed.9

9
Because our conclusion is consistent with decades of federal and state
authority, no reason appears why it cannot be applied directly to plaintiff’s case.
(Compare, e.g., Bouie v. City of Columbia (1964) 378 U.S. 347, 352-355
[application to prior conduct of new and unexpected judicial construction of
criminal statute violates due process].)
31


DISPOSITION
Insofar as the Court of Appeal held that plaintiff must receive an
affirmative offer of formal immunity from criminal use of his statements before he
could be dismissed for disobeying his employer’s orders to answer questions
related to his job performance, its judgment is reversed. In all other respects, the
judgment of the Court of Appeal is affirmed.
BAXTER, J.
WE CONCUR:

GEORGE, C.J.
KENNARD, J.
WERDEGAR, J.
CHIN, J.
MORENO, J.
CORRIGAN, J.

32


See next page for addresses and telephone numbers for counsel who argued in Supreme Court.
Name of Opinion Spielbauer v. County of Santa Clara
__________________________________________________________________________________

Unpublished Opinion


Original Appeal
Original Proceeding
Review Granted
XXX 146 Cal.App.4th 914
Rehearing Granted
__________________________________________________________________________________

Opinion No.

S150402
Date Filed: February 9, 2009
__________________________________________________________________________________

Court:

Superior
County: Santa Clara
Judge: James P. Kleinberg
__________________________________________________________________________________

Attorneys for Appellant:

Burnett, Burnett & Allen and Douglas B. Allen for Plaintiff and Appellant.

Michael D. Hersh, Beverly Tucker, Rosalind D. Wolf, Robert E. Lundquist, Brenda E. Sutton-Wills and
John F. Kohn for California Teachers Association as Amicus Curiae on behalf of Plaintiff and Appellant.
__________________________________________________________________________________

Attorneys for Respondent:

Ann Miller Ravel, County Counsel, Lori E. Pegg, Lead Deputy County Counsel, and Marcy L. Berkman,
Deputy County Counsel, for Defendants and Respondents.

Edmund G. Brown, Jr., Attorney General, David Chaney, Chief Assistant Attorney General, Jacob A.
Appelsmith, Assistant Attorney General, Miguel A. Neri, Fiel D.Tigno and Karen Huster, Deputy
Attorneys General, as Amici Curiae on behalf of Defendants and Respondents.

Raymond G. Fortner, County Counsel (Los Angeles), Lester J. Tolnai, Assistant County Counsel, and Pirjo
L. Ranasinghe, Deputy County Counsel, for County of Los Angeles as Amicus on behalf of Defendants
and Respondents.

Kathleen M. Bales-Lange, County Counsel (Tulare), Ronald E. Rezac, Chief Deputy County Counsel, and
Deanne H. Peterson, Deputy County Counsel, for California League of Cities, California State Association
of Counties, California School Boards Association, Education Legal Alliance and California Public
Employers Labor Relations Association as Amici Curiae on behalf of Defendants and Respondents.

Jan Scully, District Attorney (Sacramento) and Albert C. Locher, Assistant Chief Deputy District Attorney,
for Sacramento County District Attorney as Amicus on behalf of Defendants and Respondents.

Jones & Mayer, Martin J. Mayer and Krista MacNevin for California State Sheriffs’ Association and
California Police Chiefs’ Association as Amici Curiae on behalf of Defendants and Respondents.

Carroll, Burdick & McDonough, Ronald Yank, Gary M. Messing, Gregg McLean Adam, Jason H. Jasmine
and Jennifer S. Stoughton for Peace Officers’ Research Association of California Legal Defense Fund as
Amicus on behalf of Defendants and Respondents.


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

Douglas B. Allen
Burnett, Burnett & Allen
160 W. Santa Clara Street, Suite 1200
San Jose, CA 95113
(408) 298-6540

Marcy L. Berkman
Deputy County Counsel
70 West Hedding Street, 9th Floor, East Wing
San Jose, CA 95110-1770
(408) 299-5900

Karen Huster
Deputy Attorney General
1515 Clay Street, Suite 2000
Oakland, CA 94612-1413
(510) 622-2197

Martin J. Mayer
Jones & Mayer
3777 North Harbor Boulevard
Fullerton, CA 92835
(714) 446-1400


Petition for review after the Court of Appeal reversed the judgment in an action for writ of administrative mandate. This case includes the following issue: If a public employee exercises his or her Fifth Amendment right against self-incrimination in a public employer's investigation of the employee's conduct, must the public employer offer immunity from prosecution before it can dismiss the employee for refusing to answer questions asked in connection with the investigation?

Opinion Information
Date:Citation:Docket Number:Category:Status:
Mon, 02/09/200945 Cal. 4th 704, 199 P.3d 1125, 88 Cal. Rptr. 3d 590S150402Review - Civil Appealclosed; remittitur issued

Parties
1County Of Santa Clara (Defendant and Respondent)
Represented by Marcy L. Berkman
Office of the Santa Clara County Counsel
70 W. Hedding, East Wing, 9th Floor
San Jose, CA

2County Of Santa Clara (Defendant and Respondent)
Represented by Lori Elaine Pegg
Office of the Santa Clara County Counsel
70 W. Hedding, East Wing, 9th Floor
San Jose, CA

3County Of Santa Clara (Defendant and Respondent)
Represented by Ann Miller Ravel
Office of the Santa Clara County Counsel
70 W. Hedding, East Wing, 9th Floor
San Jose, CA

4Spielbauer, Thomas (Plaintiff and Appellant)
Represented by Douglas B. Allen
Burnett Burnett & Allen
333 W. San Carlos Street, 8th Floor
San Jose, CA

5California State Sheriffs Association (Amicus curiae)
Represented by Martin J. Mayer
Jones & Mayer
3777 N. Harbor Boulevard
Fullerton, CA

6California Police Chiefs Association (Amicus curiae)
Represented by Martin J. Mayer
Jones & Mayer
3777 N. Harbor Boulevard
Fullerton, CA

7California Police Chiefs Association (Amicus curiae)
Represented by Krista Macnevin Jee
Jones & Mayer
3777 N. Harbor Boulevard
Fullerton, CA

8County Of Los Angeles (Amicus curiae)
Represented by Pirjo Leena Ranasinghe
Office of the Los Angeles County Counsel
500 W. Temple, Suite 601
Los Angeles, CA

9League Of California Cities (Amicus curiae)
Represented by Deanne Hill Peterson
Office of the Tulare County Counsel
2900 Burrell Avenue
Visalia, CA

10California State Association Of Counties (Amicus curiae)
Represented by Deanne Hill Peterson
Office of the Tulare County Counsel
2900 Burrell Avenue
Visalia, CA

11California School Boards Association (Amicus curiae)
Represented by Deanne Hill Peterson
Office of the Tulare County Counsel
2900 Burrell Avenue
Visalia, CA

12California Public Employers Labor Relations Association (Amicus curiae)
Represented by Deanne Hill Peterson
Office of the Tulare County Counsel
2900 Burrell Avenue
Visalia, CA

13Education Legal Alliance (Amicus curiae)
Represented by Deanne Hill Peterson
Office of the Tulare County Counsel
2900 Burrell Avenue
Visalia, CA

14California Legal Defense Fund (Amicus curiae)
Represented by Jennifer Spencer Stoughton
Carroll Burdick & McDonough, LLP
44 Montgomery Street, Suite 400
San Francisco, CA

15Sacramento County District Attorney (Amicus curiae)
Represented by Albert C. Locher
Office of the District Attorney
P O. Box 749
901 G Street
Sacramento, CA

16California Teachers Association (Amicus curiae)
Represented by Michael D. Hersh
California Teachers Association
11745 E. Telegraph Road
Santa Fe Springs, CA

17Peace Officers Research Association (Amicus curiae)
Represented by Jennifer Spencer Stoughton
Carroll Burdick & McDonough, LLP
44 Montgomery Street, Suite 400
San Francisco, CA

18Brown, Edmund G. (Amicus curiae)
Represented by Karen Kiyo Huster
Office of the Attorney General
1515 Clay Street, Suite 2000
Oakland, CA

19Santa Clara County Personnel Board (Defendant and Respondent)
Represented by Marcy L. Berkman
Office of the Santa Clara County Counsel
70 W. Hedding, East Wing, 9th Floor
San Jose, CA

20Villareal, Jose (Defendant and Respondent)
Represented by Marcy L. Berkman
Office of the Santa Clara County Counsel
70 W. Hedding, East Wing, 9th Floor
San Jose, CA


Opinion Authors
OpinionJustice Marvin R. Baxter

Disposition
Feb 9 2009Opinion: Affirmed in part/reversed in part

Dockets
Feb 21 2007Petition for review filed
  County of Santa Clara by Marcy L. Berkman, Counsel
Feb 27 2007Record requested
 
Feb 28 2007Received Court of Appeal record
  one file folder/briefs
Mar 13 2007Answer to petition for review filed
  Thomas Spielbauer, Appellant Douglas B. Allen, counsel
Mar 21 2007Reply to answer to petition filed
  County of Santa Clara, defendant and respondent.
Apr 12 2007Time extended to grant or deny review
  to and including May 22, 2007
May 9 2007Petition for review granted (civil case)
  Votes: George, C. J., Kennard, Baxter, Werdegar, Chin, Moreno and Corrigan, JJ.
May 9 2007Letter sent to:
  All counsel enclosing a copy of the grant order and the form for certification of interested entities or persons
May 10 20072nd record request
  for the remaining contents of the record
May 14 2007Received additional record
  one box
May 15 2007Certification of interested entities or persons filed
  Appellant Thomas Spielbauer by Douglas B. Allen of Burnett Burnett & Allen
May 23 2007Issues ordered limited
  The issues to be briefed and argued in this case are limited to the following: When a public employee invokes his or her Fifth Amendment right against self- incrimination in a public employer's investigation of the employee's conduct, must the public employer offer immunity from any criminal use of the employee's statements before it can dismiss the employee for refusing to answer questions in connection with the investigation?
May 24 2007Certification of interested entities or persons filed
  Respondents County of Santa Clara et al. by Marcy L. Berkman, Deputy County Counsel, Santa Clara County
Jun 7 2007Opening brief on the merits filed
  County of Santa Clara et al., respondents Marcy L. Berkman, Deputy County Counsel
Jul 9 2007Answer brief on the merits filed
  Appellant Thomas Spielbauer by Douglas B. Allen, Burnett Burnett & Allen, retained.
Jul 30 2007Reply brief filed (case fully briefed)
 
Aug 16 2007Received:
  Letter dated 8-14-2007 from Marcy L. Berkman, Deputy County Counsel, Santa Clara County, counsel for respondents, advising that she will be unavailable from November 9, 2007, through December 8, 2007, as she will be out of the country.
Aug 20 2007Change of contact information filed for:
  Douglas B. Allen, Esq., effective 8-27-2007 to: 333 West San Carlos St., 8th Floor, San Jose, CA. 95110. Telephone (408) 298-6540 and Facsimile: (408) 298-0914
Aug 23 2007Amicus curiae brief filed
  Edmjund G. Brown, Jr., Attorney General of the State of California, in support of respondents.
Aug 28 2007Received application to file Amicus Curiae Brief
  California State Sheriffs' Association and California Police Chiefs' Association in support of respondents by Martin J. Mayer, Jones & Mayer
Aug 29 2007Received application to file Amicus Curiae Brief
  Peace Officers' Research Association of California Legal Defense Fund in support of respondents
Aug 29 2007Received application to file Amicus Curiae Brief
  Sacramento County District Attorney in support of respondents (Received in Sacramento)
Aug 29 2007Received application to file Amicus Curiae Brief
  California Teachers Association in support of appellant by Michael D. Hersch, retained counsel (Received in Los Angeles)
Aug 29 2007Received application to file Amicus Curiae Brief
  County of Los Angeles in support of respondents County of Sant Clara, Santa Clara County Personnel Board, and Jose Villareal by Pirojo Ranasignhe, counsel
Aug 29 2007Received application to file Amicus Curiae Brief
  California League of Cities, california state Association of Counties, California School Boards Association, Education Legal Alliance, California Public Employers Labor Relation Association in suport of respondents County of Santa Clara, et al., by Deanne H. Peterson, counsel
Sep 14 2007Permission to file amicus curiae brief granted
  The application of the County of Los Angeles for permission to file an amicus curiae brief in support of respondent is hereby granted. An answer thereto may be served and filed by any party within twenty days of the filing of the brief.
Sep 14 2007Amicus curiae brief filed
  County of Los Angeles in support of respondent
Sep 14 2007Permission to file amicus curiae brief granted
  The appilcation of Sacramento County District Attorney for permission to file an amicus curiae brief in support of respondent is hereby granted. An answer thereto may be served and filed by any party within twenty days of the filing of the brief.
Sep 14 2007Amicus curiae brief filed
  Sacramento County District Attorney in support of respondent.
Sep 14 2007Permission to file amicus curiae brief granted
  The application of California Teachers Association for permission to file an amicus curiae brief in support of appellant is hereby granted. An answer thereto may be served and filed by any party within twenty days of the filing of the brief.
Sep 14 2007Amicus curiae brief filed
  California Teachers Association in support of appellant.
Sep 14 2007Permission to file amicus curiae brief granted
  The aplication of California League of Cities, California State Associaiton of Counties, California School Boards Association And Its Education Legal Alliance and California Public Employers Labor Relations Association for permission to file an amici curiae brief in support of respondent is hereby granted. An answer thereto may be served and filed by any party within twenty days of the filing of the brief.
Sep 14 2007Amicus curiae brief filed
  California League of Cities, California State Association of Counties, California School Boards Association And Its Education Legal Alliance and California Public Employers labor Relations Association in support of respondent.
Sep 14 2007Permission to file amicus curiae brief granted
  The application of California State Sheriffs' Association and California Police Chiefs' Association for permission to file an amicus curiae brief in support of respondent is hereby granted. An answer thereto may be served and filed by any party witin twenty days of the filing of the brief.
Sep 14 2007Amicus curiae brief filed
  California State Sheriffs' Association and California Police Chiefs Association in support of respondent.
Sep 14 2007Permission to file amicus curiae brief granted
  The application of Peace Officers' Research Association of California Legal Defense Fund for permission to fle an amicus curiae brief in support of respondents is hereby granted. An answer threto may be served and filed by any party within twenty days of the filing of the brief.
Sep 14 2007Amicus curiae brief filed
  Peace Officers' Research Association of California Legal Defense Fund in support of respondents.
Aug 4 2008Received:
  Letter dated July 31, 2008 from Marcy L. Berkman, Deputy County Counsel - Santa Clara to advise the Court that from October 8, 2008 through November 17, 2008, counsel will be out of the country.
Oct 22 2008Case ordered on calendar
  to be argued on Tuesday, December 2, 2008, at 9:00 a.m., in Los Angeles.
Nov 3 2008Application filed
  Application by Marcy L. Berkman, counsel for respondents County of Santa Clara et al., requesting to divide oral argument time. Asking to share 10 minutes of time with amicus curiae Brown, as Attorney General, and 10 minutes with amici curiae California State Sheriffs' Association et al.
Nov 7 2008Order filed
  The request of counsel for respondents in the above-referenced cause to allow two counsel to argue on behalf of respondents at oral argument is hereby granted. The request of respondents to allocate to amicus curiae Edmund G. Brown, Jr. 10 minutes and amici curiae California State Sheriffs' Association et al. 10 minutes of respondents' 30-minute allotted time for oral argument is granted.
Nov 21 2008Filed:
  Supplemental Brief regarding new case authority, respondents by Marcy L. Berkman, Deputy County Counsel - Santa Clara
Dec 1 2008Received:
  County Counsel's Notice of Correction of Title for Lori E. Pegg as Assistant County Counsel, Santa Clara County.
Dec 2 2008Cause argued and submitted
 
Feb 6 2009Notice of forthcoming opinion posted
 
Feb 9 2009Opinion filed: Affirmed in part, reversed in part
  Insofar as the Court of Appeal held that plaintiff must receive an affirmative offer of formal immunity from criminal use of his statements before he could be dismissed for disobeying his employer's orders to answer questions related to his job performance, its judgment is reversed. In all other respects, the judgment of the Court of Appeal is affirmed. Opinion by Baxter, J. -- joined by George, C.J., Kennard, Werdegar, Chin, Moreno, Corrigan, JJ.
Mar 16 2009Remittitur issued (civil case)
 
Mar 19 2009Received:
  Acknowledgment of receipt for remittitur from Sixth Appellate District, signed for by Beth Miller, Deputy Clerk
May 12 2009Received:
  Supreme Court of the United States letter dated May 7, 2009, that case was filed on May 5, 2009 and placed on the docket May 7, 2009 as NO. 08-1372.
Jun 22 2009Certiorari denied by U.S. Supreme Court
  (U.S.S.C. No. 08-1372)

Briefs
Jun 7 2007Opening brief on the merits filed
 
Jul 9 2007Answer brief on the merits filed
 
Jul 30 2007Reply brief filed (case fully briefed)
 
Aug 23 2007Amicus curiae brief filed
 
Sep 14 2007Amicus curiae brief filed
 
Sep 14 2007Amicus curiae brief filed
 
Sep 14 2007Amicus curiae brief filed
 
Sep 14 2007Amicus curiae brief filed
 
Sep 14 2007Amicus curiae brief filed
 
Sep 14 2007Amicus curiae brief filed
 
If you'd like to submit a brief document to be included for this opinion, please submit an e-mail to the SCOCAL website
May 27, 2011
Annotated by Katherine Bearman

--Facts--
The plaintiff, Thomas Spielbauer, was a deputy public defender. The defendant was Santa Clara County, the plaintiff’s employer.

In January 2003, the plaintiff, in his capacity as a deputy public defender, represented a defendant at trial. During the trial, the plaintiff opposed the prosecutor’s motion in limine to exclude on hearsay grounds a witness’s extrajudicial statement. In so doing, the plaintiff allegedly made affirmative misrepresentations to the court. Around March 2003, Chief Assistant Public Defender David Mann learned that the district attorney’s office was considering three courses of action against the plaintiff in light of the allegations: filing misdemeanor charges against him; reporting him to the State Bar; or allowing the Public Defender’s Office to deal with the allegations as it saw fit.

Upon receiving this information, Mann commenced an internal investigation into the allegations. As part of the investigation, the county interviewed the plaintiff on April 1, 2003. In attendance at the interview were the plaintiff, the plaintiff’s lawyer, Mann, Joe Guzman (the supervisor of the public defender office’s felony division), and Alayne Bolster (a departmental investigator).

At the April 1, 2003 interview—and at a second interview on April 10, 2003—Guzman explained to the plaintiff that the investigation was not a criminal proceeding. Rather, it was an employee investigation. Further, Guzman explained to the plaintiff that nothing the plaintiff said in the interviews could be used against him in any subsequent criminal proceeding. Finally, Guzman made it clear to the plaintiff that refusing to answer questions could “be deemed insubordination, leading to administrative discipline up to and including termination.” 45 Cal. 4th at 712.

The plaintiff’s attorney advised him to remain silent, and that is what the plaintiff did. Consequently, on June 9, 2003, Mann recommended that the plaintiff be fired from his deputy public defender position. Mann provided three civil service grounds for the termination: “(1) insubordination (stemming from plaintiff’s refusal to answer the investigator’s questions), (2) gross misconduct unbecoming a county officer . . . and (3) seeking, in violation of office rules governing attorney ethics, to mislead a court by artifice or false statement.” 45 Cal. 4th at 713.

The “insubordination” ground is that which the California Supreme Court addressed in this case.

--Procedural History--
The plaintiff’s case was first adjudicated in a prediscipline administrative hearing. There, the hearing officer and the county personnel board sustained the charges that Mann had brought and sustained Mann’s decision to terminate the plaintiff.

The plaintiff petitioned for a writ of mandamus in the Superior Court of Santa Clara County, arguing that the county—by firing him due to his refusal to answer questions—violated his right against compelled self-incrimination under the United States Constitution and under the California Constitution. More specifically, the plaintiff contended that without first giving him a “formal grant of criminal use immunity,” the county could not terminate him for refusing to answer potentially incriminating questions about his job performance. The superior court rejected this argument and denied the plaintiff’s mandamus petition. It also found that the evidence supported the charges against and the termination of the plaintiff.

The plaintiff appealed, and the Court of Appeal for the Sixth Appellate District reversed. It found that although the county provided three grounds for termination, its decision to fire the plaintiff was based, in part, on the plaintiff’s refusal to answer questions during the investigation. Agreeing with the argument that the plaintiff made in superior court, the court of appeal held that because the plaintiff had received no formal grant of criminal use immunity, termination due to his silence was legally erroneous.

--Issue--
The Supreme Court of California granted review on the following issue: In a noncriminal public employment investigation, does the public employer have to “seek, obtain, and confer a formal guarantee of immunity before requiring its employee to answer questions related to that investigation,” where the consequences of the employee’s refusal would be termination or other job discipline? 45 Cal. 4th at 710.

--Holding--
Justice Baxter wrote the unanimous opinion for the court.

Under both the California Constitution and the United States Constitution, a public employer can force an employee to answer questions about job performance without making a formal grant of immunity, and can terminate or otherwise discipline the employee for refusing to do so, provided that the employer does not, “on pain of dismissal, [require that the employee] waive the constitutional protection against criminal use of those answers.” 45 Cal. 4th at 710. Notably, although the plaintiff in this case was told that his compelled statements could not be used against him in a criminal proceeding, the court refrained from deciding whether public employees must give such advisements in order to properly terminate an employee for his refusal to answer questions during a noncriminal internal investigation.

--Analysis--
Constitutional Provisions
The court first explained that California Constitution article I, section 15, and the Fifth Amendment of the United States Constitution, not only protect a person from being forced to testify against himself in a criminal proceeding, but also give that person a privilege to stay silent when faced with official questioning in “any other proceeding, ‘civil or criminal, formal or informal,’ where . . . he reasonably believes that the answers might incriminate him . . . in a criminal case.” 45 Cal. 4th at 714. In other words, “official compulsion” can occur outside of a courtroom, and one such context in which it can occur is during a public employer’s internal investigation of job misconduct. Accordingly, when an employer compels an employee to give incriminating answers during such an investigation, those answers cannot be used against the employee in a criminal proceeding. See Garrity v. New Jersey, 385 U.S. 493 (1967).

United States Supreme Court Case Law
The court noted that in contexts other than public employers’ internal investigations into job misconduct, the U.S. Supreme Court has not clearly stated what conditions must be present in order to compel someone to “give incriminating answers for nonpenal use.” Id. In Adams v. Maryland, 347 U.S. 179 (1954), for example, the Supreme Court stated that a witness subpoenaed to testify before Congress “does not need any statute to protect him from the [criminal] use of a self-incriminating statement he is compelled to give over his objection,” because the Fifth Amendment “takes care of that without a statute.” In other cases, the Supreme Court has indicated that when a person is interrogated under official, but noncriminal, circumstances, that person can “insist on the constitutional privilege” until the official questioner grants him formal immunity that is “coextensive with the privilege itself,” without facing administrative sanctions. See, e.g., Chavez v. Martinez, 538 U.S. 760 (2003). And in still other cases, the Supreme Court has held that even when a person has “received official assurances” that his employer does not plan to use any statements against him in a criminal proceeding—to be distinguished from a formal grant of criminal use immunity—that person can refuse to answer questions in a noncriminal context without being sanctioned. See, e.g., Maness v. Meyers, 419 U.S. 449 (1975).

Lower Federal and California Courts’ Case Law
After citing additional Supreme Court cases that fall into the above categories, the court explained that despite the potential uncertainties that the cases create, many courts—including the U.S. Supreme Court, lower federal courts, and California courts—have given distinct treatment to public employees’ privilege against compelled self-incrimination in the context at hand. The circumstances merit unique treatment due to “the paramount duty of public employees to their employers, and the importance of ensuring the proper performance of public duties.” 45 Cal. 4th 718. Thus, although the courts staunchly insist that no compelled statement will be used against an employee in a criminal proceeding, the courts do allow employers to sanction their workers for refusing to answer questions in internal investigations of job misconduct. Id. Put another way, the case law supports an approach where public employers during official, noncriminal investigations, can impose sanctions for employees’ silence so long as the employers do not force the employees to “surrender the constitutional privilege against criminal use” of his job-related statements. Id.; see Garrity, supra; Spevack v. Klein, 385 U.S. 511 (1967); Gardner v. Broderick, 392 U.S. 273 (1968); Sanitation Men v. Sanitation Commissioner, 392 U.S. 280 (1968); Uniformed Sanitation Men Assoc., Inc. v. Commissioner of Sanitation of N.Y., 426 F.2d 619 (2d Cir. 1970) (cert denied, 406 U.S. 961 (1972)).

Granted, several California statutes require that public employers give to their workers formal immunity offers before compelling them, in noncriminal investigations, to answer potentially incriminating questions. But like the aforementioned case law, the statutes do not bar public employers from terminating or otherwise disciplining employees if they choose not to answer the questions. See, e.g., California Government Code section 3253(e)(1) (“The employer shall provide to . . . [a firefighter] a formal grant of immunity from criminal prosecution, in writing, before the [firefighter] may be compelled to respond to incriminating questions in an interrogation. Subject to that grant of immunity, a firefighter refusing to respond to questions or submit to interrogations shall be informed that the failure to answer questions directly related to the investigation or interrogation may result in punitive action.”)

Accordingly, California courts have followed the federal courts’ lead, as illustrated by several noteworthy cases: Szmaciarz v. State Personnel Board, 79 Cal. App. 3d 904 (1978); Kelly v. State Personnel Board, 94 Cal. App. 3d 905 (1979); Lybarger v. City of Los Angeles, 40 Cal. 3d 822 (1985); Long Beach City Employees Association v. City of Long Beach, 41 Cal. 3d 937 (1986); Williams v. City of Los Angeles, 47 Cal. 3d 195 (1988).

In Lybarger and in Williams, for example, the plaintiffs were police officers who could claim statutory protection against self-incrimination under the Public Safety Officers Procedural Bill of Rights Act (Government Code section 3300 et seq). The Act provides that if police officers’ employers are interrogating the officers for noncriminal purposes, but future criminal charges for the conduct at issue seem possible, the employers must advise the officers about their constitutional rights against self-incrimination.

In Lybarger, a police officer’s employer was interrogating him in a noncriminal investigation. The employer told the plaintiff that there was a criminal investigation into his conduct, but did not inform him about his constitutional rights. The employer did, however, tell the plaintiff that if he did not answer the questions posed, he could get fired. The plaintiff invoked his Fifth Amendment rights anyway, and lost his job for doing so. The California Supreme Court found that the plaintiff’s employers had violated his statutory right to advisement under Government Code section 3300. The violation was prejudicial, and as a result, terminating the plaintiff due to his silence was improper. The court made clear that the plaintiff did not have a constitutional or statutory right to be protected from administrative sanctions for invoking his Fifth Amendment right in the context that he did. The problem in this case was that the City violated the plaintiff’s statutory right. Thus, the City could properly have fired the plaintiff if the investigators had advised the plaintiff of his constitutional right against self-incrimination; had told him that he could face administrative sanctions for invoking that right; and had told him that if he answered the questions, his statements could not be used against him in a subsequent criminal proceeding.

Chief Justice Bird, who wrote a concurrence in Lybarger, argued that “the right to an appropriate admonition might itself be constitutional in nature.” The California Supreme Court in Spielbauer, however, stated that it did not need to reach that argument since Spielbauer received such admonitions. See also Long Beach City Employee’s Association, supra.

The Williams case was similar in almost all respects to Lybarger, except that the plaintiff chose to answer questions rather than invoke his Fifth Amendment right. The City fired him based on some of the answers that he gave. The California Supreme Court held that as in Lybarger, the City violated the plaintiff’s statutory right to an advisement. Nevertheless, his dismissal was valid since the plaintiff “admitted misconduct on duty.” 45 Cal.4th at 724.

After discussing at length other California cases that speak to these issues, the court articulated its holding in the case at hand: Under both the California Constitution and the United States Constitution, an employer “may discipline, and even dismiss, a public employee for refusing, on grounds of the constitutional privilege [against compelled self-incrimination], to answer the employer’s job-related questions,” so long as the employer does not force the employee to waive his right against use of his statements in a criminal proceeding in order to keep his job. The court qualified the holding by stating that the holding applies “at least where, as here, the employee is specifically advised that he or she retains that right.” Id. at 725.

Policy Rationales
The court next supported its holding on public policy grounds. Plaintiffs in cases like these certainly have personal interests, but there are “competing public . . . interests” as well. Id. As mentioned previously, public employees hold a special role in society, and it is important for their employers to be able to quickly and efficiently investigate misconduct. Allowing a public employee to stonewall his employer until the employer grants him a formal guarantee of criminal use immunity would create harmful delays in employers’ investigations. Moreover, public employers might not even have the authority to give such guarantees.

Finally, the court addressed the Court of Appeal for the Sixth District’s worry that letting a public employer compel an employee to make self-incriminating statements would “plac[e] immunity control in the employer’s hands alone.” 45 Cal. 4th 704. As a result, the court of appeal argued, prosecutors who later wanted to bring criminal charges against the employee would face a significant obstacle: they would have to prove that the government collected its evidence from a source other than the interview where the employer compelled the employee’s self-incriminating answers. The court responded to this argument by citing various rules it had upheld that could, in theory, have created a similar result, but that did not actually do so. See Byers v. Justice Court, 71 Cal. 2d 1039 (1969); People v. Superior Court (Kaufman), 12 Cal. 3d 421 (1974). The court went on to say that, even if the Spielbauer rule hinders a small number of criminal prosecutions, the “strong interest” in a public employer’s ability “to act promptly and freely . . . to investigate and remedy [employees’] misconduct and breaches of trust” outweighs the harm. 45 Cal. 4th at 729. Amicus curiae briefs filed on the county’s behalf by the California Attorney General, the California State Sheriffs’ Association, the California Police Chiefs’ Association, and the Sacramento County District Attorney took the same position.

--Tags--
self-incrimination; nonpenal self-incrimination; right; privilege; immunity; use immunity; criminal use immunity; formal immunity; coextensive; grant formal immunity; firing public defenders; employee termination; internal investigation; official questioning; compel; answer questions; refuse to speak; refuse to answer; silence; insubordination; public employees' duties'; court misconduct; misleading the court; job performance; job misconduct; abuse of power; warning; advisement; waive rights; surrender rights; statutory right; prejudice; admit to misconduct; protect constitutional rights; balance rights; hinder prosecution

--Key Related Cases--
See Garrity v. New Jersey, 385 U.S. 493 (1967)
Adams v. Maryland, 347 U.S. 179 (1954)
Chavez v. Martinez, 538 U.S. 760 (2003)
Maness v. Meyers, 419 U.S. 449 (1975)
Sanitation Men v. Sanitation Commissioner, 392 U.S. 280 (1968)
Lybarger v. City of Los Angeles, 40 Cal. 3d 822 (1985)
Williams v. City of Los Angeles, 47 Cal. 3d 195 (1988)

--Key Related Constitutions and Statutes--
U.S. Const. amend. V
California Constitution art. I, § 15
California Government Code section 3253(e)(1)

--Other Related Materials--
Jennifer Chin & John Russo, Ruling Will Help Hold Public Employees Accountable for their Work, Daily Journal, Mar. 23, 2009, at 6.

Laura Ernde, County Was Right to Fire P.D., Justices Say, Daily Journal, Feb. 10, 2009, at 2.

Howard Mintz, California Supreme Court: County can fire worker for refusing to answer questions, San Jose Mercury, (State and Regional News Section), Feb 9. 2009, at [pin cite unavailable].

Lori E. Pegg & Marcy L. Berkman, Spielbauer: The Status Quo Affirmed, 195 Cal. Pub. Rel. J. 18 (May 2009) (describing the opinion and discussing questions that the opinion left open), available at http://laborlaw.calbar.ca.gov/LinkClick.aspx?fileticket=1twBTkbYIms%3D&t....

Annotation by Kate Bearman