Disciplinary and Harassment Investigations

This decision reiterates what lower courts and federal courts have stated for decades: An employer can require a public employee, under threat of discipline, to answer job-related questions as long as the employer does not require the employee to surrender his or her right against the use of any such statements in a subsequent criminal proceeding. While the Court did not specifically hold that a Lybarger admonition must be provided to non-peace officer public employees in that situation, the County of Santa Clara did provide a Lybarger admonition to Spielbauer. The Court made clear that a public employer may compel answers in an administrative investigation if it first provides a Lybarger admonition to a public employee and does not otherwise force the employee to waive his or her constitutional rights. Public employers with fire employees should be advised that the Firefighters Procedural Bill of Rights Act has an explicit provision requiring employers to provide firefighters with a formal, written grant of immunity from prosecution before the employee may be compelled to respond to incriminating questions. (Gov. Code, § 3253(e)(1).) LCW recommends that agencies should consult with legal counsel on this particular issue before compelling a firefighter to respond to potentially incriminating questions during an investigatory interview.

LCW Practice Advisor

D. H AVE A G OOD G ENERAL K NOWLEDGE OF A GENCY P OLICY R EGARDING THE C ONDUCT A LLEGED Before an investigator can properly investigate the facts, he/she must be aware of the type of behavior which is prohibited by the agency’s policy. For example, if the investigator is investigating a possible abuse of sick leave, he or she will have to know how abuse of leave is defined in agency policy in order to gather relevant facts. Similarly, there is nothing that prevents an agency from prohibiting conduct that may not rise to the level of illegal harassment and many agencies will have policies against romantic relationships between employees, especially between superior and subordinate. Agencies may have policies regarding the use of their computers for non-work related email out of concern for security regardless of whether the email in question is harassing or not. An investigator may fail to include this information in his or her report if he/she does not understand the relevant sections of agency policy.

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