Posted January 16, 2007

 Spielbauer v. County of Santa Clara (2007) DJDAR 591, WL 80458

 California Court of Appeal Rules that Public Employees Cannot be Disciplined for Insubordination for Refusing to Answer Incriminating Questions, Absent an Offer of Use Immunity

           In a case arising from the discharge of a deputy public defender who refused to answer the employer's questions on Fifth Amendment grounds, the Court of Appeal has ruled that "a public employer has no power to peremptorily and unilaterally immunize statements of its employees, and in the absence of a grant of immunity, it cannot lawfully compel them to answer incriminating questions, or punish their refusal to do so."

           This decision, which will become final on March 12 if not acted on by the California Supreme Court, sharply criticizes Lybarger and other state cases for confusing immunity with the exclusion of administratively-compelled statements in any subsequent criminal proceeding. Spielbauer holds that anticipated exclusion of compelled statements does not substitute for the formal grant of use and derivative-use immunity required before answers may actually be compelled or discipline imposed for an assertion of constitutional rights in response to the employer's command that the employee answer questions.

           Spielbauer may significantly affect the manner in which police misconduct cases are handled, necessitating a prosecutorial or judicial proffer of immunity before statements may be compelled or discipline imposed for a refusal to speak. Agencies, officers, and their advisors and representatives may wish to evaluate this decision and assess its impact on current practices.