Finding the Facts - Disciplinary and Harassment Investigation

“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.

Do you understand these rights?

In light of your understanding of your rights will you cooperate with this investigation and respond to the questions put to you?

(c) Immunity for Firefighters Effective January 1, 2008, the Firefighters Procedural Bill of Rights Act (FBOR) (Government Code, § 3250 et seq.) provides that an employer “shall provide to, and obtain from, an employee a formal grant of immunity from criminal prosecution, in writing, before the employee may be compelled to respond to incriminating questions in an interrogation.” 106 Once the grant of immunity is provided, the employing fire department shall inform a firefighter that the failure to answer questions directly related to the investigation or interrogation may result in punitive action. 107 The FBOR’s language requiring the grant of immunity is ambiguous, and an district should consult with legal counsel in each case, but the following advisement will be appropriate in most circumstances:

This [district] is providing you with a formal grant of use immunity in accordance with California Government Code section 3253(e)(1). Use immunity bars a prosecutor from making direct use of your statements in a subsequent criminal proceeding or from using information or any other evidence that was obtained indirectly or derived from your statements against you. Use immunity is not the same as transactional immunity, which would bar a prosecutor from charging you with the crime that is the subject of your statements. Consequently, a criminal prosecutor could still bring charges against you based on other evidence. In light of the [district]’s grant of use immunity, you are now ordered to fully and truthfully answer all questions

Disciplinary and Harassment Investigations ©2019 (e) Liebert Cassidy Whitmore 50