Finding the Facts - Disciplinary and Harassment Investigation

the ongoing investigation could very well jeopardize the District in securing the necessary sub rosa (secretly gathered) evidence to prove Doe’s alleged misconduct.

In addition, it is not unusual for several days or even weeks to pass between commencing an investigation and the actual interview of the subject employee. Pre-interview notification to the employee of the investigation may cause fellow employees to be more reluctant to come forward or to be open during their interviews (the subject may pressure potential witnesses).

Nevertheless, there are situations where it is advisable to notify the subject employee, early on, of the pending investigation. These include:



When the district rules require it;

 When there is a risk of retaliation by the subject employee, who should be ordered not to retaliate;  When advising the subject is needed to try to protect against continuation of the conduct under investigation (except when doing so would impair an investigation such as in the above example; and  When the nature of the complaint requires separating the complainant and the subject of the investigation. C. W HAT IF THE S UBJECT M ATTER OF THE I NVESTIGATION R ELATES TO C RIMINAL AS W ELL AS A DMINISTRATIVE M ISCONDUCT ? In such instances, it is recommended that, immediately upon learning of allegations that could result in criminal charges, you advise the local police chief/sheriff of the pending administrative investigation and make efforts to coordinate the criminal and administrative investigations. Generally, our firm recommends that criminal and administrative investigations be conducted on separate but parallel tracks. An employee has the right to assert his or her right to be free from self-incrimination under the Fifth Amendment to the United States Constitution during a criminal investigation. If an employee reasonably believes statements he or she may make during the administrative interview will incriminate him or her for criminal wrong-doing, he/she may assert this right in the administrative investigation. However, an employer can order an employee to answer questions during the administrative investigation if a Lybarger 78 warning is given. The Lybarger warning guarantees that the statements made during the administrative investigation will not be used against the employee in a criminal investigation. A Court of Appeal case, Spielbauer v. County of Santa Clara , 79 called into question the use of Lybarger admonitions, holding instead that a public employer could not compel a public employee to submit to an administrative interview over an employee’s right to remain silent unless the employee first obtained a formal grant of immunity from the local prosecuting district (i.e. District Attorney). On February 9, 2009, in a unanimous opinion, the California Supreme Court, overturned the Court of Appeal in Spielbauer and held that a public employer may compel

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