Tuesday, January 16, 2007
Page 1
C.A.: Public Entity May Not Force Worker to Incriminate Self
By KENNETH OFGANG, Staff Writer
A public entity cannot discipline an employee for refusal to answer potentially incriminating questions during the course of an internal investigation, the Sixth District Court of Appeal ruled Friday, absent a grant or offer of immunity.
The justices directed the Santa Clara County Personnel Board to reconsider the termination of Thomas Spielbauer for insubordination and conduct unbecoming a public employee. They upheld the board’s finding that the former deputy public defender attempted to mislead a judge, but left it up to the board to decide whether that offense alone was enough to justify Spielbauer’s firing.
Spielbauer was dismissed in July 2003 after 23 years in the office, for misleading Superior Court Judge Paul Teilh at a January 2003 court hearing by claiming that a witness couldn’t be located and was unavailable, as well as for refusing to answer questions about the incident.
Public Defender Jose Villarreal concluded, and a hearing officer and the personnel board agreed, that Spielbauer deliberately withheld the fact that he had spoken to the witness at his home after investigators were unable to locate him.
Spielbauer’s client, Michael Dignan, was a convicted felon charged with unlawfully possessing ammunition. The witness, Troy Boyd, told police that he was renting the house where the ammunition was found from his parents.
Motion to Exclude
Prosecutors moved to exclude Boyd’s statement as hearsay. Spielbauer argued that Body was unavailable as a witness because he was ducking an arrest warrant and that the statement was admissible under a hearsay exception in order to show that Dignan lacked control over the area where the ammunition was found.
The judge said the statement could come in. A police officer subsequently went to Boyd’s house, where Boyd said he had spoken to a “public defender investigator” and had told him that while Boyd indeed rented the house from his parents, he also sublet portions of it to others, including Dignan.
When the prosecutor raised the matter in court, Spielbauer said that it was he who spoke to Boyd. He claimed that he had only gone to the house to take pictures, that he did not expect to find Boyd there and thus did not take a subpoena, and that Boyd told him that he would not in any event go to court.
He also insisted that he did not tell the judge at the in limine hearing that he had “bumped into” Boyd because the information was protected by the attorney work product.
Upon learning of the incident, the chief deputy public defender contacted prosecutors, who provided information and said they were considering three options—charging Spielbauer with a crime, filing a complaint with the State Bar, or turning the matter over to the public defender to handle internally.
Refusal to Answer
Without waiting for the decision—Spielbauer was later charged with deceiving the court, a misdemeanor under the State Bar Act, although the charge was eventually dismissed—the public defender proceeded with an internal investigation.
In the course of that investigation, Spielbauer was queried by his supervisor and by an investigator, but refused to answer questions on advice of counsel. After he was fired, he claimed that the public defender had a vendetta against him because he had criticized Villareal’s management and tried unsuccessfully to qualify a ballot initiative that would have made the office of public defender elective.
San Francisco is the only California county that now elects its public defender.
Santa Clara Superior Court Judge James P. Kleinberg denied Spielbauer’s mandate petition, rejecting his argument that he could not be compelled to answer potentially incriminating questions without an offer of immunity.
But Presiding Justice Conrad Rushing said Spielbauer was correct on that point, citing Lefkowitz v. Turley (1973) 414 U.S 70, in which the court held that “a witness protected by the privilege may rightfully refuse to answer unless and until he is protected at least against the use of his compelled answers and evidence derived therefrom in any subsequent criminal case in which he is a defendant.”
The rule applies to employment investigations, the presiding justice wrote. He also rejected the argument that the Fifth Amendment was satisfied because Spielbauer was told that his answers could not be used against him in a criminal case.
While there is a right not to have unlawfully compelled answers admitted in a criminal prosecution, that is not a substitute for “the interrogational privilege—the right to stand mute absent a grant of immunity,” Rushing said. To protect the Fifth Amendment rights of the person being interrogated, he wrote, immunity must be granted, pursuant to statute, otherwise the answers may not be compelled.
The jurist rejected dicta in a California Supreme Court case, involving a police officer, suggesting that immunity arises from the compulsion itself. Such a result would invade the province of prosecutors, whose ability to bring cases would be impeded if other officials could unilaterally compel disclosures “that may taint later prosecutions,” Rushing said.
Rushing went on, however, to say that there was substantial evidence to support the personnel board’s finding that Spielbauer engaged in conduct unbecoming a county employee.
It was clear that the attorney “affirmatively represented that he considered it futile to attempt to find and serve the witness, when, as the court below was entitled to find, he knew it was not,” Rushing said.
Rushing questioned the relevance of Thielh’s statements that he was not misled and that he was “deeply troubled and disappointed that the public defender has taken drastic action against Deputy Public Defender Thomas Spielbauer based on a faulty premise.”
The presiding justice wrote:
“The governing question is the nature of plaintiff’s conduct, not its effect on its intended hearer, or even the hearer’s opinion of its gravity.”
Spielbauer, a three-time candidate for the Santa Clara Superior Court, now heads his own law firm in San Jose. He and his attorney, Douglas Allen, did not return MetNews phone calls.
The case is Spielbauer v. County of Santa Clara, 07 S.O.S. 198.
Copyright 2007, Metropolitan News Company