CLIENT BULLETIN ON SPIELBAUER v. COUNTY OF SANTA CLARA

With the California Supreme Court granting review in Spielbauer v. County of Santa Clara (2007) 146 Cal.App.4th 914, we advised our clients earlier this year of the potential implications of the decision. The following is the text of our Client Bulletin:

As you may know, a recent appellate court decision challenging “Garrity immunity” for public employees in discipline investigations has prompted an intense statewide discussion among public safety managers, internal affairs investigators, and the law enforcement labor association community. This letter expresses your law firm’s opinion on the case, Spielbauer v. County of Santa Clara (2007) 146 Cal.App.4th 914 (“Spielbauer”).

Contrary to the opinion expressed by many in the law enforcement labor community, the ruling in Spielbauer v. County of Santa Clara is unlikely to have any immediate impact on the Public Safety Officers Procedural Bill of Rights Act (“POBR”) and the “grant of immunity” admonition commonly given in peace officer discipline investigations. The Spielbauer court was careful to note its ruling does not apply to peace officers because the POBR and the landmark case of Lybarger v. City of Los Angeles (1985) 40 Cal.3d 822, provide a grant of immunity independent of any Fifth Amendment right available to non-sworn public employees. Nonetheless, the reasoning in Spielbauer eventually may be used to challenge the “grant of immunity admonition” routinely given in internal affairs interrogations.

Summary of the Case

The petitioner in the case, Thomas Spielbauer, was a deputy public defender in San Jose who was to be questioned about lying to a judge. Lying to a judge is a State Bar offense for which an attorney may be disciplinedor disbarred. When he was admonished by the interviewer that any statements he made under threat of termination could not be used against him in a criminal proceeding, Spielbauer nonetheless invoked his Fifth Amendment right against self-incrimination and refused to answer questions on the grounds his answers could incriminate him. The employer attempted to question him a second time, received the same refusals, and fired him for insubordination as well as for unbecoming conduct based on his statements to the judge.

Spielbauer petitioned for a writ of mandate to overturn his termination on the basis the employer’s representation that his statements could not be used against him in a criminal proceeding was not adequate to protect his privilege against self-incrimination. The trial court denied the petition.

On review, however, the Sixth District Court of Appeal sided with Spielbauer. In a lengthy decision criticizing longstanding immunity principles established by state and U.S. Supreme Court decisions, the court held a public employee may refuse to answer questions on Fifth Amendment grounds unless the employer first offers the employee formal immunity from prosecution. The court held only a formal grant of immunity – i.e., a written statement from a prosecuting agency that the employee will not be prosecuted based on his statement – will allow the employer to compel an employee to answer questions and to discipline him for insubordination if he refuses.

The “Garrity Rule” and Grants of Immunity

At issue in this debate is nothing less than the proper interpretation of the Fifth Amendment and Fourteenth Amendment rights against self-incrimination in administrative discipline proceedings. The rule that a public employee has no constitutional right to remain silent in an administrative interrogation once he has been advised his statements cannot be used against him in a subsequent criminal proceeding derives from the U.S. Supreme Court’s decision 40 years ago in Garrity v. State of New Jersey (1967) 385 U.S. 493. In Garrity, several New Jersey police officers were subjected to administrative interrogation by the state attorney general in a ticket-fixing investigation. The officers were warned to give statements or lose their jobs. The Supreme Court held the officers’ confessions had been coerced “under threat of removal from office”, and prohibited their use in the subsequent criminal prosecution.

Applying this “Garrity rule”, courts have reasoned the employer’s “promise” the employee will not be prosecuted using the employee’s compelled statement is sufficient to protect the right against self-incrimination because the statement could be suppressed should a prosecuting agency attempt to use it in a criminal proceeding. The “grant of immunity admonition” derived from Garrity is used throughout the state to compel otherwise incriminating statements from public employees by promising “use immunity” in exchange for the statement.

The Spielbauer court rejected this reasoning as a misinterpretation of Garrity and other federal decisions. Instead, the court argued the promise an employee’s statements would be excluded in a future criminal proceeding is not adequate to protect the statement because the promise does not actually bind the prosecuting agency. The Spielbauer court argued Garrity created a non-binding exclusionary rule, not a requirement binding on prosecutors. Several law enforcement labor attorneys now argue peace officers cannot be compelled to give a statement in an administrative investigation where there are potential criminal charges.

In our view, however, the rule that public employees,including peace officers, cannot be fired for refusing to waive constitutional rights is based on the Fifth and Fourteenth Amendment right against self-incrimination and not solely on Garrity. In Garrity and several other decisions, the U.S. Supreme Court reiterated thatthe protection of the individual under the Fourteenth Amendment against coerced statements prohibits use in subsequent criminal proceedings of statements obtained under threat of removal from office, and that it extends to all, whether they are policemen or other members of our body politic.

This is more than an exclusionary rule. A public employee cannot be compelled to give up his right against self-incrimination – one of the most important rights we have – without a guarantee the compelled statement will not be used against him in a criminal proceeding because there is no other means to enforce the right. This guarantee is automatic: prosecuting agencies cannot use a statement compelled under threat of termination because any use would violate the public employee’s constitutional rights. Thus, prosecutors are bound by the Fifth and Fourteenth Amendments, not solely by Garrity and Lybarger, and Spielbauer’s attempt to impose a requirement for a formal grant of immunity is superfluous and incorrect.

The Sixth District Court of Appeal itself has held “Lybarger immunity” to be sufficient to protect against the use of an officer’s statement in a future criminal prosecution. (People v. Gwillim (1990) 223 Cal.App.3d 1254.) The Spielbauer court criticized Lybarger and its own decision in Gwillim as creating “interrogational immunity” where none exists as a matter of constitutional right. Those cases, the Spielbauer court argued, improperly vest in a public employer the power to interfere with the independent prosecuting agency by issuing grants of immunity that then bind the prosecutor without the prosecutor’s consent. The court recognized, however, that it was “constrained to follow the holdings of the California Supreme Court,” and could not “overrule” Lybarger.

County Seeks Supreme Court Review

The County of Santa Clara has petitioned the California Supreme Court to review Spielbauer. Review is likely to be granted because the decision involves fundamental constitutional issues and has the potential to impact public employee investigations – administrative and criminal – throughout California.

Peace Officers Remain Protected

“Lybarger immunity” remains in effect despite the Spielbauer decision. The POBR is an independent statute which the courts have held requires officers to be advised of constitutional rights whenever an administrative interrogation involves criminal matters. The Lybarger admonition is repeated daily in dozens of law enforcement internal affairs interrogations and no other published case has questioned the common practice of California prosecutors to treat statements compelled under Lybarger as protected from use against the officer in a criminal prosecution.

Another issue on appeal, however, will be the practical application of the court’s decision. The Lybarger admonition is repeated daily in dozens of law enforcement internal affairs interrogations and no other published case has questioned the common practice of California prosecutors to treat statements compelled under Lybarger as protected from use in a criminal prosecution. Any requirement that employers apply for immunity before interrogating an employee or that prosecutors be involved in the administrative investigation process will slow the process even further and may cause more employees to decide to waive their rights altogether rather than seek even the limited protection of the Lybarger admonition.

Prosecuting agencies do not routinely issue written grants of immunity before a statement is taken in an administrative investigation. One unfortunate consequence of Spielbauer may be to give prosecutors an argument for obtaining and using compelled statements in criminal prosecutions of peace officers without fear the statement will be suppressed.

If the decision is allowed to stand, its most likely effect will be to force employers to use evidence other than the employee’s statement as a basis for discipline. Under Spielbauer, an employee facing administrative allegations that involve criminal misconduct may be able to refuse to give a statement without fear of termination for insubordination but still can be fired on the underlying charge.

The California Supreme Court undoubtedly will grant review as requested by the County of Santa Clara. For now, the Spielbauer decision affects non-sworn public employees within the jurisdiction of the Sixth District Court of Appeal and possibly statewide. In those jurisdictions where we represent non-sworn public employees, we are evaluating the need to request modifications to the administrative discipline process. To date, none of these jurisdictions has changed its internal affairs policy based on Spielbauer.