Finding the Facts - Disciplinary and Harassment Investigation

interview will incriminate him or her for criminal wrong-doing, he/she may assert this right in the administrative investigation. However, an employer can order an employee to answer questions during the administrative investigation if a Lybarger 77 warning is given. The Lybarger warning guarantees that the statements made during the administrative investigation will not be used against the employee in a criminal investigation. A Court of Appeal case, Spielbauer v. County of Santa Clara , 78 called into question the use of Lybarger admonitions, holding instead that a public employer could not compel a public employee to submit to an administrative interview over an employee’s right to remain silent unless the employee first obtained a formal grant of immunity from the local prosecuting district (i.e. District Attorney). On February 9, 2009, in a unanimous opinion, the California Supreme Court, overturned the Court of Appeal in Spielbauer and 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. 79 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

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