Tuesday, February 10, 2009
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S.C. Upholds Lawyer’s Firing for Refusing to Answer Questions
Justices Say Deputy Public Defender Not Entitled to Formal Immunity During Internal Investigation
By KENNETH OFGANG, Staff Writer
A public entity may discipline an employee for refusal to answer potentially incriminating questions during the course of an internal investigation, the state Supreme Court ruled yesterday.
The justices reaffirmed that a public employee’s compelled answers to questions asked during an internal investigation or disciplinary proceeding cannot be used against the employee in a subsequent prosecution. But they unanimously agreed that there is nothing in the state or federal constitution that requires a formal grant of immunity before the public entity may compel such answers.
The decision reverseda Sixth District Court of Appeal ruling in favor of Thomas Spielbauer, who was fired as a Santa Clara County deputy public defender for insubordination and conduct unbecoming a public employee.
Administrative Charges
Spielbauer was dismissed in July 2003 after 23 years in the office—he also ran three times for the Santa Clara Superior Court—based on administrative charges that he misled Superior Court Judge Paul Teilh at a January 2003 court hearing and refused to answer questions about the incident.
Public Defender Jose Villarreal concluded, and a hearing officer and the Santa Clara County 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.
Prosecutors moved to exclude Boyd’s statement as hearsay. Spielbauer argued that Boyd 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.
Prosecutors Contacted
Upon learning of the incident, the chief deputy public defender contacted prosecutors, who 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.
Without waiting for prosecutors to act—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.
The Court of Appeal—while finding that there was substantial evidence that Spielbauer engaged in conduct unbecoming a county employee—reversed with regard to the self-incrimination issue. The panel cited 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.”
But Justice Marvin Baxter, writing for the Supreme Court, noted that Turley arose under a statute that forced workers to either waive their Fifth Amendment rights or forfeit their jobs. Spielbauer, he noted, was under no such compulsion, and was correctly advised that answers given in the internal investigation could not be used against him in a criminal prosecution.
Having given that advice, Baxter wrote, “the employer was not further required to seek, obtain, and confer a formal guarantee of immunity before requiring its employee to answer questions related to that investigation.”
The justice rejected as “exaggerated, if not entirely mistaken” what he said was the Court of Appeal’s premise that it is unfair to use an exclusionary rule to legalize “what would otherwise be the unconstitutional compulsion of self-incriminatory utterances.”
Baxter emphasized that the self-incrimination clauses protect a person from being compelled to be a witness against himself, or herself, in a criminal proceeding, but do not protect the individual from being forced to admit wrongdoing in some other context.
It is “the settled rule,” the justice wrote, “that, absent a contrary statute, a public employer, acting for noncriminal reasons, may demand answers from its own employee about the employee’s job conduct and may discipline the employee’s refusal to cooperate, without first involving the prosecuting authorities in a decision about granting formal immunity.”
The case is Spielbauer v. County of Santa Clara, 09 S.O.S. 755.
Copyright 2009, Metropolitan News Company