Finding the Facts - Disciplinary and Harassment Investigation

Furthermore, the Supreme Court disputed the legal underpinnings of the Court of Appeal's decision, finding that decades of state and federal case law allow an employer to compel an employee to answer job-related questions in a disciplinary investigation. For example, the Supreme Court determined that the Court of Appeal had improperly concluded that the concepts of immunity and the right to exclusion from evidence in a criminal prosecution are two separate concepts that cannot be combined. The Supreme Court pointed out that in multiple opinions, the U.S. Supreme Court has used the concepts of immunity and the right to exclusion of evidence interchangeably. For select public employees, some measure of the enhanced protections offered by Spielbauer may live on. For instance, the Firefighters Procedural Bill of Rights Act contains a provision requiring employers to provide a firefighter with a formal, written grant of immunity from prosecution before he or she can be compelled to respond to potentially incriminating questions about events occurring during the performance of his or her duties. That part of the act appeared after the Supreme Court had granted review in Spielbauer and the Court of Appeal's decision was de-published. The Supreme Court referenced, but did not directly address this statutory provision in the act, nor did the court define what exactly constitutes a "formal" grant of immunity. LCW recommends that districts should consult with legal counsel on this particular issue before compelling a firefighter to respond to potentially incriminating questions during an investigatory interview. Otherwise, the California Supreme Court has made it clear that most public employees may be compelled to answer job-related though incriminating questions as long as they are not required to waive their rights against use of those statements in subsequent criminal proceedings.

This decision reiterates what lower courts and federal courts have stated for decades: An employer can require 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

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