Labor & Employment Law

Employee must answer questions without formal grant of immunity

Today?s Employment Law Memo tells the story of Thomas Spielbauer, who was a deputy public defender. The boss fired him (in part) for disobeying his employer?s orders to answer questions. Spielbauer thought he should first be given a formal grant of immunity from prosecution.

The County (Spielbauer?s employer) was investigating allegations that he had made deceptive statements to the court while representing a criminal defendant. A supervising attorney directed Spielbauer to answer questions about the incident, told Spielbauer that his refusal to cooperate would be deemed insubordination warranting discipline up to and including dismissal, but advised Spielbauer ? accurately ? that no use in a criminal proceeding (i.e., criminal use) could be made of his answers.

But Spielbauer?s lawyer advised him not to answer, invoking his privilege against compelled self-incrimination under both the federal and California Constitutions.

The County then fired him on grounds of the deceptive court conduct, and for disobeying the employer?s orders to answer questions.

Spielbauer?s argument: That he could not be compelled, on pain 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 California Supreme Court unanimously upheld Spielbauer?s discharge from employment. Spielbauer v. County of Santa Clara (California 02/09/2009).

Spielbauer had been advised that he could be discharged for insubordination based on his refusal to answer questions, and that his statements could not be used against him in any criminal proceedings. The employer?s advice was accurate, since self-incriminating statements made by public employee upon pain of discharge are considered ?compelled? for purposes of the 5th Amendment. Spielbauer still refused to answer the questions absent a guarantee of immunity, which led to his discharge.

The court held:

"Neither the federal nor 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."

"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 ... the employee is specifically advised that he or she retains that right."

Full post as published by Ross' Employment Law Blog on February 11, 2009 (boomark / email).