Principles for Public Safety Employment

pump could be petty or grand theft as well as administrative misconduct. Thus, at the outset of an investigation, careful consideration should be paid to whether criminal charges are possible. In Spielbauer v. County of Santa Clara , 163 the California Supreme Court held that a public employer may compel 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. Based on this decision, an employer can require a public employee, under threat of discipline, to answer any 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. 3. I MMUNITY FOR F IREFIGHTERS In a departure from the POBR and the California Supreme Court’s holding in Spielbauer , the FBOR 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.” 164 Thus, before a firefighter may be compelled to answer incriminating questions, he or she must be immunized against use of incriminating answers in criminal prosecutions. 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. 165 The FBOR’s language requiring the grant of immunity is ambiguous, and an agency should consult with legal counsel in each case. After consulting with legal counsel, an agency may consider utilizing following advisement: This [agency] 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 [agency]’s grant of use immunity, you are now ordered to fully and truthfully answer all questions asked of you during this

interrogation. Your failure to do so will, in and of itself, constitute a disciplinable act of insubordination and will result in a recommendation of disciplinary action against you, up to and including dismissal. Department General Order No.____ provides that: (include general order providing that insubordination is grounds for discipline).

Principles for Public Safety Employment ©2022 (s) Liebert Cassidy Whitmore 58