Finding the Facts - Disciplinary and Harassment Investigation

her job performance, so long as the employee is not also required to surrender the constitutional privilege against criminal use of any statements thereby obtained."

In overturning the Court of Appeal, the Supreme Court reasoned that public employees owe a "paramount" duty to their employers, and that public employers have an important interest in ensuring the proper performance of public duties. According to the Supreme Court, a requirement that an employer obtain a formal grant of immunity before it could compel its employee to answer questions would impede investigations into employee misconduct, and would undermine "the urgent administrative need to root out and eliminate misfeasance by public employees." 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.

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