California Supreme Court Decides Major Garrity Case

The California Supreme Court issued its long-awaited decision in Spielbauer v. County of Santa Clara. The first major interpretation of the rule on Garrity v. New Jersey by the California Supreme Court in many years, Spielbauer reverses a lower court decision that had held that a formal grant of immunity is necessary before a public employee may be compelled to give a statement about job-related conduct that has criminal implications.

Thomas Spielbauer was a deputy public defender for the Santa Clara County public defender’s office, a County agency. The local district attorney began to investigate whether Spielbauer had made a serious misrepresentation to a judge about whether he was aware of the location of a criminal defendant. When the public defender’s office got wind of the district attorney’s investigation, it started its own investigation.

When Spielbauer was interviewed by his employer, he was told that he had “the right to remain silent and not to incriminate himself. Your silence, however, may be deemed insubordination, leading to administrative discipline up to and including termination. Any statement made during this interview cannot, and I emphasize cannot, be used against you in any subsequent criminal proceeding.”

Spielbauer nonetheless refused to answer the questions asked him, contending that the County was required to obtain a formal grant of immunity before he could be obligated to answer the questions. Spielbauer was eventually fired not only for representations he made to the Court, but also for insubordination stemming from his refusal to answer the investigator’s questions.

The California Court of Appeals reversed Spielbauer’s termination. The Court agreed with Spielbauer that a public employee must receive a formal grant of criminal use immunity before being required, on pain of discipline, to answer potentially incriminating official questions about his or her job performance. Because of the huge public policy implications of requiring public employers to obtain immunity grants as a routine part of internal investigations, the California Supreme Court accepted the case for review.

The Court conducted an extensive analysis of the rule in Garrity v. New Jersey, 385 U.S. 493 (1967), and its analogue under California law, Lybarger v. City of Los Angeles, 221 Cal.Rptr. 529 (1985). The Court made two essential findings. First, the Court observed that “many lower federal court cases have held since Garrity that the Fifth Amendment does not require a formal, affirmative grant of immunity before a public employee may be dismissed for his or her blanket refusal to answer official questions about performance of the employee’s public duties, so long as the employee is not required to surrender the constitutional privilege against the direct or derivative use of his or her statements in a subsequent criminal prosecution.”

Second, the Court found that the immunity that flows from the Garrity rule is self-executing. In other words, whenever a public employee is compelled upon pain of potential job loss to answer questions, the employee’s answers and the fruits of the answers are immediately immunized from use in a subsequent criminal prosecution of the employee.

The Court also made clear that “the employer may discipline, or 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.”

Spielbauer v. County of Santa Clara, 2009 WL 291191 (Cal. 2009).

NOTE: Though the California Supreme Court did not specifically address the issue, the clear implication of its opinion is that a public employer must warn employees that a refusal to answer questions will subject them to disciplinary action up to and including termination, and must advise the employees that their statements and the fruits of their statements will not be used against them in a subsequent criminal proceeding.

This article appears in the March 2009 issue