August 31, 2009
Previously published on February 12, 2009
The California Supreme Court has rendered its long-awaited decision in Spielbauer v. County of Santa Clara, S150402, decided February 9, 2009. The Court held that under certain circumstances, a public employee can be terminated or otherwise disciplined for refusing to answer questions in an internal investigation and no formal grant of immunity is required. This affirms the right of public employers to require employees to cooperate with internal investigations.
The Spielbauer case involved a public defender accused of making misrepresentations to a judge about the availability of a witness. The public defender’s office initiated an internal investigation regarding the misrepresentations, but the accused public defender refused to answer questions during the investigation, claiming his 5th Amendment and California Constitutional rights against self-incrimination. The public defender was assured that any statements made during the interview could not be used in a subsequent criminal proceeding. The public defender still refused to answer questions and was thereafter terminated from his employment in part for insubordination. In challenging his termination, the public defender argued that he could not be forced to answer questions absent a “formal” grant of immunity stating that his answers could not be used in a subsequent criminal case.
As the California Supreme Court articulated, both the 5th Amendment and the California Constitution protect against self-incrimination in a criminal trial or when such incriminating statements may be used in a criminal case. Additionally, in order to balance the government’s interest in gathering information against these constitutional protections, the law is clearly established that incriminating answers coerced from a public employee cannot be used against the employee in a criminal proceeding. Given this safeguard, there is no need for an employee to refrain from answering questions during an internal investigation. The protection that excludes evidence in subsequent criminal proceedings exists whether or not the employee is granted formal immunity. The California Supreme Court reasoned that because public employees’ federal and state constitutional rights are protected, even absent formal immunity, no such formal immunity is required before a public employer can require an employee, upon threat of job discipline, to answer questions during an employment investigation. So long as the public employee is adequately informed of his or her rights, and is not required to waive such rights, the employee cannot choose to remain silent and avoid administrative sanction.
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