Up-to-date information for employers on topics and issues that may affect workplace operations. The posts are current as of the date of the posting.


by Jennifer Brown Shaw and Matthew J. Norfleet | The Daily Recorder | Apr 8, 2009

Like all employers, public-sector employers (such as government agencies) conduct internal investigations concerning a variety of issues. Some investigations are occasioned by claims of unfair treatment. Others result from possible unlawful activity in the workplace.

Sometimes these claims overlap. When that happens, the government’s role as an employer investigating a workplace incident may collide with constitutional limits on government power.

Public and private-sector employers also differ in that abusing a government job for personal gain often is a serious crime, and because the press and public scrutinize public employees’ activities more closely than most private sector employers. Therefore, in the main, public employers generally conduct more internal investigations about more issues than private employers.

“Pleading the Fifth”

Public sector employers are constrained by the federal and California Constitutions. The Fifth Amendment of the United States Constitution reads: “No person . . . shall be compelled in any criminal process to be a witness against himself. . .” The California Constitution also prohibits compelled self-incrimination in Article I Section 15.

The privilege against self-incrimination applies in any official proceeding, “civil or criminal, formal or informal,” where a citizen “reasonably believes the answers might incriminate him or her in a criminal case.” This is the well-known “right to remain silent,” familiar to those who watch police shows on late night television.

Silence cannot be held against a criminal defendant, but it can be used against a person in non-criminal cases. An employee may not be “ordered to choose between his constitutional rights and his job.” But, “a public employee may be required to answer questions relative to his fitness for employment if his answers cannot be used against him in a subsequent criminal proceeding.”

POBRA and the Fifth Amendment

The police are employees, too. Their jobs regularly involves drugs, guns, high tempers, and civil rights laws. So, investigations of misconduct on the job may well involve potential criminal conduct. As a result, the tension between the Fifth Amendment and the employer’s legitimate questioning is evident.

In California, peace officers’ rights are spelled out in a statute passed in 1977 called the Peace Officers’ Procedural Bill of Rights (or “POBRA,” for short). POBRA applies to most state and local government employees with badges. POBRA gives peace officers certain specific rights not required by the Constitution or given to all employees, such as the right to bring a tape recorder to an interview.

If a peace officer invokes the right to remain silent, POBRA requires a notice that the answer cannot be used in a criminal case, but that refusing to respond to an official interview question can be considered insubordination. This notice has come to be called a “Lybarger admonition” after a Los Angeles police officer named Lybarger who refused to answer a question and was fired without the warning, but subsequently as reinstated by the California Supreme Court. The Court ruled that Lybarger could not remain silent and keep his job, but he had to be informed that his answers in the internal investigation would not be used against him in a criminal case.

The Fifth Amendment and Investigations of Non-Peace Officers

Most law enforcement agencies and peace officers’ unions likely are aware of how POBRA works. However, the California courts recently had to answer a question regarding how the same rights affect investigative interviews of public employees when POBRA does not apply.

Thomas Spielbauer was a Deputy Public Defender in Santa Clara County. Deputy Public Defenders, of course, are employed by the government to represent defendants charged with crimes. Consequently, they are familiar with the Fifth Amendment, but are not covered by POBRA or entitled to Lybarger admonitions.

Spielbauer told a judge a witness was unavailable to appear in court, and therefore the jury should receive an instruction explaining why the witness did not testify on behalf of Spielbauer’s client. A few days later, the police found the witness, who stated that the day before Spielbauer made the statement in court, Spielbauer came to the witness’s house but did not attempt to serve him with a subpoena.

Spielbauer then admitted he had met the “unavailable” witness, but claimed it was unplanned and the information about their meeting was “attorney work product.” The Deputy District Attorney prosecuting the case said Spielbauer attempted to mislead the court, and the DA’s office later brought misdemeanor charges against Spielbauer for allegedly making a false statement to a judge.

Readers who are familiar with public sector employment cases such as Riverside County Sheriff’s Department v. Zigman, in which a deputy sheriff was disciplined for failing to inform her superiors that her husband, another deputy, admitted to stealing methamphetamines from suspects and the evidence locker, might not think the allegations against Spielbauer were all that sensational. However, all attorneys naturally must be extremely careful with their credibility before judges. The judge in this case apparently later denied having been misled by Spielbauer’s statements and said that both attorneys were simply arguing their sides of the case.

When the controversy arose, a manager from the Public Defender’s office called Spielbauer to interview him about his statements to the judge. Spielbauer brought his own lawyer, asserted the Fifth Amendment privilege, and did not answer questions. His manager attempted to explain that the interview was an internal investigation and would not be shared with the District Attorney (essentially a Lybarger admonition). The manager even cited prior case law that prohibited the prosecution from using a self-incriminating statement that had been compelled by a threat of employment discipline, but Spielbauer and his lawyer said that it only applied to police officers. A second interview was held, with the same results.

Spielbauer held out for written grant of immunity. Instead, he was terminated for insubordination for refusing to answer his manager’s questions, and for attempting to mislead a judge.

State Supreme Court Allows Mandatory Questioning of Employees

Spielbauer appealed through the civil service procedures, but the termination stood until he reached the Court of Appeal. That court reversed the termination, holding that there is a difference between immunity and the right to exclude evidence obtained illegally in a criminal case. According to the court, Spielbauer was entitled to formal grant of immunity before he could be required to answer questions.

There are a number of different rules for granting immunity under state law; prosecutors, fire departments, the State Personnel Board, the Fair Political Practices Commission, and the Corporations Commissioner can give immunity in certain cases. But immunity never comes from the Public Defender. So, who was the Public Defender to say that Spielbauer would not be prosecuted if he admitted to a crime? The question presented by the Spielbauer case, one of particular significance for anyone conducting an internal investigation of public sector employees, was whether the investigator or the employing agency could grant “immunity” to the employee.

The Court of Appeal’s decision was a huge roadblock for anyone attempting to investigate misconduct by government employees because internal investigators are rarely in a position to grant formal immunity from prosecution. Under the court’s ruling, employees could simply take the Fifth and send the investigator to the DA’s office to obtain a grant of immunity. As the DA may or may not do grant immunity, the extra step not only could complicate, but also potentially thwart, employee investigations involving possible criminal activity.

On review, the California Supreme Court reversed the Court of Appeal and upheld Spielbauer’s termination. In reaching its decision, the Court stated: “When a public employer demands job-related information from its employee, while advising that the employee does not thereby surrender the constitutional right against use of the information in a subsequent criminal prosecution, the employer acts legally. In such circumstances, the employee’s constitutional right against self-incrimination is thus directly and precisely satisfied ‘by precluding any use of his statements at a subsequent criminal proceeding.'”

The Court even recognized the challenge facing internal investigators under the lower court’s ruling, noting that “it is not clear how the public employer could even obtain such a formal grant of immunity.” The Court also supported internal investigators where the lower court had implied that employers could interfere with law enforcement by abusing the power to immunize employee interviews: “[T]he public employer must be able to act promptly and freely. . . to investigate and remedy misconduct and breaches of trust by those serving on the public payroll. This strong interest outweighs the incidental effect on enforcement of criminal laws that may arise from the rule that statements thus compelled by the employer cannot be used in aid of a later criminal prosecution against the employee.”


In Spielbauer, the Supreme Court recognized that internal investigations of employees play an important rule in effective government. Conducting thorough, careful investigations of misconduct allegations in government agencies is difficult enough without imposing additional procedural requirements. As many commentators have argued for some time, the Court found that the constitutional protections provided by the Fifth Amendment itself are strong enough to ensure that employees are not railroaded in criminal cases without preventing internal investigators from doing their jobs.

Anyone who conducts internal investigations for public employers should familiarize themselves with the Spielbauer decision, as well as with other procedural requirements that may apply, such as POBRA.