Supreme Court Grants Review of Spielbauer v. County of Santa Clara

May 15, 2007

Court of Appeal (6th District) Case No. H029345, Supreme Court Case No. S150402. On May 9, 2007, the California Supreme Court granted review of Spielbauer v. County of Santa Clara, a decision that declined to follow previous cases holding that a public employer can require its employees to waive their Fifth Amendment right against self-incrimination in administrative investigations in exchange for immunizing those statements from use in a criminal proceeding.

The Court of Appeal in Spielbauer held that a public employer has no authority to offer immunity, and without providing immunity the agency could not discipline public employees who assert their Fifth Amendment right not to testify in an administrative proceeding. Because the California Supreme Court granted review of Spielbauer, it can not be cited as legal authority.

Prior to Spielbauer, cases construing Lybarger v. City of Los Angeles held that a public employer could offer criminal immunity to compelled statements of employees and discipline them if they refused to waive their Fifth Amendment rights. Spielbauer disagreed, creating a conflict over the employer's right to compel such testimony. Thus, the question now is what public employers should do while waiting for a Supreme Court ruling on Spielbauer?

The Supreme Court's review of Speilbauer creates three options:

1. An employer can simply take the position that Spielbauer is not binding law, and can instead follow Lybarger (which is binding law), permitting employers to discipline employees who refuse to waive their Fifth Amendment rights after being given a "Lybarger warning" - advising that their statements cannot be used against them in criminal proceedings. Meanwhile, public employees may rely on Spielbauer and refuse to waive their Fifth Amendment rights. If the Supreme Court reverses Spielbauer and affirms Lybarger , there will be no problem. If not, however, and the Supreme Court holds that public employers cannot unilaterally bestow immunity on compelled testimony, disciplinary actions based solely on insubordination (for refusing to answer) may be overturned.

2. Alternatively, an employer could "sidestep" the issue by accepting the employee's refusal to waive his or her Fifth Amendment rights and use evidence obtained from sources other than the employee's statement. The employee can be disciplined for the misconduct, and should not be telling a different story at the time of hearing because the employee cannot do so without waiving the employee's Fifth Amendment rights.

3. Finally, the employer can still offer Lybarger immunity during the investigation and caution that a refusal to answer will constitute insubordination. If the employee refuses to answer, the employer can discipline the employee both for the underlying misconduct and for insubordination as a separate and independent basis for discipline. Using this approach allows the agency to have the discipline upheld on an alternative basis even if the Supreme Court ultimately affirms Spielbauer.

LEG Advisory: Some employees may choose to testify, with or without Lybarger immunity, especially if the likelihood of criminal prosecution is remote. They may prefer to waive their right against self-incrimination to ensure that they get to tell their story during the investigation, Skelly meeting, and post-discipline hearing. Take advantage of this by at least documenting compliance with Lybarger.