Finding the Facts - Disciplinary and Harassment Investigation

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.

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?

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