Spielbauer v. County of Santa Clara
45 Cal.4th 704 (2009)
Facts
Thomas Spielbauer was a deputy public defender employed by Santa Clara County, California. In April of 2003, he was investigated by his employer for allegations that he had made deceptive statements to the court while representing a criminal defendant.
In numerous investigatory interviews, a supervising attorney told Spielbauer that "his refusal to cooperate would be deemed insubordination warranting discipline up to and including dismissal," but also "advised plaintiff - accurately - that no use in a criminal proceeding (i.e., criminal use) could be made of his answers" (709). Regardless of these assurances, he refused to answer questions, invoking his privilege against self-incrimination under the federal and state constitutions.
Spielbauer and his attorney asserted that the protections extended by the employer only applied to police officers, and thus provided no protection for Spielbauer. Immunity for Spielbauer, they argued, could only be extended by a court of law. Despite the employer's assurances, they argued, the employer had no authority to make those assurances.
Spielbauer was then terminated for refusal to answer the employer's questions and for deceptive court conduct.
Spielbauer then sought reinstatement, arguing that that he could not be compelled by threat of dismissal to answer potentially incriminating questions unless he received, in advance, a formal grant of immunity from direct or derivative use of his answers in any criminal case against him. The trial court upheld his termination. However, the Court of Appeal, while affirming his guilt on the deception charges, reversed on the grounds that a public employee must receive a formal grant of criminal use immunity before being required, under threat of discipline, to answer potentially self-incriminating questions.
In numerous investigatory interviews, a supervising attorney told Spielbauer that "his refusal to cooperate would be deemed insubordination warranting discipline up to and including dismissal," but also "advised plaintiff - accurately - that no use in a criminal proceeding (i.e., criminal use) could be made of his answers" (709). Regardless of these assurances, he refused to answer questions, invoking his privilege against self-incrimination under the federal and state constitutions.
Spielbauer and his attorney asserted that the protections extended by the employer only applied to police officers, and thus provided no protection for Spielbauer. Immunity for Spielbauer, they argued, could only be extended by a court of law. Despite the employer's assurances, they argued, the employer had no authority to make those assurances.
Spielbauer was then terminated for refusal to answer the employer's questions and for deceptive court conduct.
Spielbauer then sought reinstatement, arguing that that he could not be compelled by threat of dismissal to answer potentially incriminating questions unless he received, in advance, a formal grant of immunity from direct or derivative use of his answers in any criminal case against him. The trial court upheld his termination. However, the Court of Appeal, while affirming his guilt on the deception charges, reversed on the grounds that a public employee must receive a formal grant of criminal use immunity before being required, under threat of discipline, to answer potentially self-incriminating questions.
Issue
"When a public employee invokes his or her Fifth Amendment right against self-incrimination in a public employer's investigation of the employee's conduct, must the public employer offer immunity from any criminal use of the employee's statements before it can dismiss the employee for refusing to answer questions in connection with the investigation?" (714)
Holding
Reversed. A formal guarantee of immunity is not necessary.
Reasoning
- ". . . the law is clear that incriminating answers coerced from a public employee under threat of dismissal cannot be used against the employee in a criminal proceeding. This is so even where the employee received no advance grant of formal immunity" (715).
- "The [U.S. Supreme] court has never held, in the context of a noncriminal investigation of public employee job performance, that an employee must be offered formal immunity from criminal use before being compelled, by threat of job discipline, to answer questions on that subject" (718).
- "Lower federal courts, and California courts other than the instant Court of Appeal, have thus consistently concluded that the Constitution does not require a public employer to obtain and provide an affirmative grant of criminal use immunity before using the threat of job discipline to compel answers from its employee in the course of an investigation of job performance. Rather, these cases hold, the employee may be punished for refusal to answer the employer's job-related questions if he or she is not required to surrender the constitutional privilege against criminal use of the statements thereby obtained" (719).
- "We are therefore persuaded that neither the federal nor the California constitutional privilege against compelled self-incrimination requires a public employer to provide its employee with a formal grant of criminal use immunity before it can require the employee, upon threat of job discipline, to answer questions relating to the employee's job performance. On the contrary, the employer may discipline, and even dismiss, a public employee for refusing, on grounds of the constitutional privilege, to answer the employer's job-related questions, so long as the employee is not required, as a condition of remaining in the job, to surrender his or her right against criminal use of the statements thus obtained—at least where, as here, the employee is specifically advised that he or she retains that right" (725).
- "Indeed, as the instant Court of Appeal conceded, it is not clear how the public employer could even obtain such a formal grant of immunity" (726).
Commentary
The 2007 decision by the Court of Appeal sent a shiver of anxiety through the public sector labor relations community. The fear was that this interpretation - that before a public employee could be questioned, management first had to secure a formal grant of immunity from a prosecutor - would spread to other jurisdictions. For example, the March 2007 issue of Public Safety Labor News called Spielbauer "potentially the most important case in 40 years interpreting Garrity v. New Jersey."
The Court of Appeal expressed concern that to do otherwise would allow a public employer to confer automatic, unilateral criminal use immunity on an employee simply by compelling cooperation, which could hinder prosecutions. Therefore, if a public manager wanted to compel an employee to cooperate, the manager should first have to go through the process of securing use immunity for the employee.
The burden that this placed on public managers would have made a nightmare of the process of investigating employees; investigations relating to any possible criminal activity would have become mired in procedural necessities before questioning could even take place.
Also, imagine the burden that would have been placed on local prosecutors, who would have to deal with Garrity-related immunity requests from every municipal employer in their jurisdiction - every police department, every fire department, every sewer department, every public school, every nursing home, every jail, etc.
Fortunately, the above was rightly overturned by the Supreme Court of California, who correctly stated that a formal grant of immunity is not required before questioning begins. There are echoes of Confederation of Police v. Conlisk here, affirming that it is not the employer who grants immunity - the immunity exists in the Fifth Amendment and is brought about as soon as the employee is compelled to answer questions that may incriminate them. Management can give an advisement of that immunity (and in the 7th Circuit is actually required to give such an advisement, as a result of Conlisk), but an advisement is not the same thing as a conferral of immunity.
As an additional note, Spielbauer's attorney was obviously wrong in arguing that Garrity protection only applied to police officers. A cursory review of the basic case law would have shown otherwise. Even the original Garrity decision in 1967 said the protection "extends to all, whether they are policemen or other members of our body politic." That has not changed since.
The Court of Appeal expressed concern that to do otherwise would allow a public employer to confer automatic, unilateral criminal use immunity on an employee simply by compelling cooperation, which could hinder prosecutions. Therefore, if a public manager wanted to compel an employee to cooperate, the manager should first have to go through the process of securing use immunity for the employee.
The burden that this placed on public managers would have made a nightmare of the process of investigating employees; investigations relating to any possible criminal activity would have become mired in procedural necessities before questioning could even take place.
Also, imagine the burden that would have been placed on local prosecutors, who would have to deal with Garrity-related immunity requests from every municipal employer in their jurisdiction - every police department, every fire department, every sewer department, every public school, every nursing home, every jail, etc.
Fortunately, the above was rightly overturned by the Supreme Court of California, who correctly stated that a formal grant of immunity is not required before questioning begins. There are echoes of Confederation of Police v. Conlisk here, affirming that it is not the employer who grants immunity - the immunity exists in the Fifth Amendment and is brought about as soon as the employee is compelled to answer questions that may incriminate them. Management can give an advisement of that immunity (and in the 7th Circuit is actually required to give such an advisement, as a result of Conlisk), but an advisement is not the same thing as a conferral of immunity.
As an additional note, Spielbauer's attorney was obviously wrong in arguing that Garrity protection only applied to police officers. A cursory review of the basic case law would have shown otherwise. Even the original Garrity decision in 1967 said the protection "extends to all, whether they are policemen or other members of our body politic." That has not changed since.
