Disciplinary and Harassment Investigations

(b) “ Lybarger Warning” When the investigation may reveal that the employee has committed a crime, the employee may refuse to answer questions out of fear that the answers may be used to criminally prosecute him/her. If the employee asserts his or her right against self-incrimination, the investigator should read to the employee what is called a Lybarger admonition. The Lybarger admonition explains to the employee that, if he/she refuses to provide complete and truthful answers to the questions, he/she will be subject to discipline up to and including dismissal for failure to answer, but, the admonition also explains that the answers to those questions cannot be used against him/her in any criminal proceeding. While the Lybarger case involved an investigation of a police officer, subsequent cases have applied the same principles to all public employees. 82 S AMPLE L YBARGER A DMONITION Context #1: Employee is already under criminal investigation for same conduct, or it is otherwise clear before interview begins, that questions you intend to ask implicate potential criminal conduct. In this situation, before beginning to question the witness, state: “Your conduct at issue here may have criminal consequences; that is, you may be or become the subject of a criminal investigation and criminally prosecuted for the conduct that is at issue here. As a public employer, I have the authority to assure you that your statements will not be used in any criminal proceeding, and on that basis I may direct you to answer my questions. Please listen carefully as I review your rights now.”

Context #2: While questioning the witness, he or she refuses to answer on the grounds that it may incriminate him/her. In this situation, state:

“As a public employer, I have the authority to assure you that your statements will not be used in any criminal proceeding, and on that basis I may direct you to answer my questions. Please listen carefully as I review your rights now.” Review rights as follows: Do you understand that the purpose of this meeting is to ask you questions relating to your work performance and duties?

The District recognizes that pursuant to the Fifth Amendment of the United States Constitution, and the California Constitution, you have the right to remain silent and not incriminate yourself.

However, you are being directed to cooperate in this administrative investigation and answer the questions put to you, and your silence can be deemed insubordination and cause for discipline, up to and including termination. While any statement you make here today can be used against you in any administrative or disciplinary proceeding, any statement made here under the compulsion of the threat of such discipline cannot be used against you in any subsequent criminal proceeding.

Disciplinary and Harassment Investigations ©2020 (s) Liebert Cassidy Whitmore 45