Finding the Facts - Disciplinary and Harassment Investigation

an employee to answer questions in an administrative investigation regarding the employee's job performance without first obtaining a formal grant of immunity from criminal use of the employee's statements, as long as the employer does not force the employee to waive the employee's constitutional protection against criminal use of those statements. 80 Thomas Spielbauer was a deputy public defender in Santa Clara County. His employer had reason to believe that while acting in his capacity as a deputy public defender, Spielbauer had made misrepresentations to a trial court as to the whereabouts of a key witness. Spielbauer sought to introduce hearsay evidence after telling the court that a key witness was unavailable. The prosecutor then discovered that Spielbauer had spoken to the allegedly unavailable witness the day before the trial. In allegedly making misrepresentations to the court, Spielbauer subjected himself to criminal prosecution and potential discipline by the State Bar. Spielbauer's employer began an internal investigation, part of which included interviewing Spielbauer. At the outset of his disciplinary interview, Spielbauer was admonished that although he had the right to remain silent, he was being ordered to answer questions as part of his employment, and that if he refused he would face possible termination for insubordination. Spielbauer was also advised that his compelled statements could not be used against him in any subsequent criminal proceedings. These advisements are often referred to as "Lybarger warnings," as discussed above. Despite the Lybarger warning, Spielbauer refused to answer his employer's questions and he was terminated for, among other things, insubordination. After exhausting his administrative remedies, Spielbauer sought a writ of administrative mandamus overturning his termination. He contended that the Fifth Amendment privilege against self-incrimination entitled him to refuse to answer the questions unless he received, in advance, a formal grant of criminal use immunity. The trial court upheld the dismissal, but the 6th District Court of Appeal reversed. In its opinion overruling the Court of Appeal, the Supreme Court noted that the constitutional privilege against compelled self-incrimination in a criminal case does not mean that a public employee cannot 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." In overturning the Court of Appeal, the Supreme Court reasoned that public employees owe a "paramount" duty to their employers, and that public employers have an important interest in ensuring the proper performance of public duties. According to the Supreme Court, a requirement that an employer obtain a formal grant of immunity before it could compel its employee to answer questions would impede investigations into employee misconduct, and would undermine "the urgent administrative need to root out and eliminate misfeasance by public employees."

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