Public Employee Fifth Amendment Rights Examined

June 13, 2007 by Beeson Tayer & Bodine

A California Court of Appeal has ruled that a public employer cannot discipline an employee for refusing to answer potentially incriminating questions during the course of an employment investigation, unless the employee is granted immunity from criminal prosecution. Spielbauer v. County of Santa Clara, 53 Cal. Rptr.3d 357.

Reviewing prior cases in the area, the Court reasoned: “… the state cannot compel a public employee to answer incriminating questions ‘unless and until he is protected’ against the use of his answers to make a criminal case against him…” The Court interpreted this protection to require a grant of immunity, i.e., an undertaking by the state not to use the answers to prosecute. Because the County advised Spielbauer only that his answers could not be used against him in a criminal case, and did not obtain for him a grant of immunity from the prosecutor, the Court held he could not be compelled to answer the County’s questions.

In May, the California Supreme Court granted review of this decision, voiding its effect pending the Supreme Court’s decision. Should the Supreme Court affirm the Court of Appeal, this case will allow public employees to refuse to respond to potentially incriminating questions during the course of an employment investigation unless the employee is given a grant of immunity by the prosecuting agency.

Until the Supreme Court issues it decision, however, the rights of public employees in responding to their employer’s potentially incriminating questions remains murky, and employees facing such situation should consult with a criminal attorney.

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