APPEAL from the Superior Court of Riverside County. Edward D. Webster, Judge. Affirmed. (Super.Ct.No. RIC444772).
The opinion of the court was delivered by: Ramirez, P.J.
CERTIFIED FOR PUBLICATION
Real party in interest and appellant Riverside County Sheriff's Deputy Astrid Megan Reynolds (Deputy Reynolds) appeals from the trial court's judgment granting a petition for writ of administrative mandate filed by the Riverside County Sheriff's Department (RSD) against arbitrator Louis M. Zigman. This case concerns an appeal from an eight-hour reduction in pay for Deputy Reynolds for having violated RSD policy by failing to inform her supervisors of a conversation in which her husband, Riverside County Sheriff's Deputy James Reynolds, admitted that he used and stole methamphetamine. The arbitrator who heard Deputy Reynolds's administrative appeal stated that he overturned the discipline because it was based on a communication between Deputy Reynolds and her husband that was protected by the marital privilege. The major issue in this appeal is whether the marital communications privilege applies in law enforcement administrative investigations and hearings. A secondary issue is whether Deputy Reynolds voluntarily waived any such privilege.
As discussed below, we conclude the privilege does not apply in law enforcement administrative investigations and hearings. Our courts have consistently held that the more fundamental, constitutional privilege against self-incrimination does not apply in law enforcement administrative investigations for reasons of public policy. The administrative appeal of any punitive action taken as a result of the administrative investigation can only be effective if conducted using the same rules of privilege as in the administrative investigation. Given this holding, the issue of waiver is moot.
Deputy James Reynolds began to use methamphetamine in late 2002 or early 2003. He also began to steal methamphetamine from people he arrested and from other deputies who had seized the drug. In March or April 2003, at their home, Deputy Reynolds asked her husband why he was acting so irritable. Deputy James Reynolds confessed that he had been using methamphetamine. During the course of a two-hour long argument, he also admitted that he had been stealing the drug. Deputy James Reynolds promised he would stop both practices. In his criminal interview, Deputy James Reynolds told investigators that he and his wife never discussed the matter again and that he gave her no reason to believe that he continued using methamphetamine.
On or about June 24, 2003, RSD began a personnel investigation into Deputy Reynolds, Deputy James Reynolds, and three other deputies after a tip from a deputy that Deputy James Reynolds was stealing methamphetamine from suspects and other deputies. A criminal investigation began at about the same time. In a July 3, 2003, sting operation, Deputy James Reynolds was caught stealing six grams of methamphetamine from what he thought was a crime scene. In his criminal interview the same day, Deputy James Reynolds admitted that he had obtained methamphetamine from the other three deputies, and that his wife, Deputy Reynolds, knew of his methamphetamine use and theft.
Deputy Reynolds was also interviewed for the criminal investigation on July 3, 2003. She admitted that her husband had told her he was using methamphetamine. Although the transcript indicates that many of Deputy Reynolds's answers were inaudible on the tape recording, she answered "Yes" when reminded by the investigator that, "Just a few minutes ago you told me that he told you he used it a few months ago. Is that correct?" Deputy Reynolds also stated, "I tell him that I'd kick his ass up and down the street. . . . if there was any in the house."
Deputy Reynolds was interviewed for the administrative investigation on October 7, 2003. Her union representative was present. Deputy Reynolds invoked her right against self-incrimination under Miranda v. Arizona (1966) 384 U.S. 436 and told the investigator that she did not want to speak to him. The investigator ordered Deputy Reynolds to cooperate and advised her that, while any answers could not be used against her in a criminal proceeding, she could be subject to disciplinary action if she refused to cooperate, citing "the Lybarger admonition, admonishment."*fn1 A discussion ensued as to whether Deputy Reynolds wished to invoke the marital communications privilege and what that would mean. After consulting with her representative, Deputy Reynolds stated that she wished to invoke the privilege. Deputy Reynolds further stated, "I want to make it clear that I do not wish in any way to be insubordinate and if ordered to answer the question, I certainly will." When asked if she had invoked the privilege during the interview for the criminal investigation, Deputy Reynolds stated that she answered the investigators' questions because she didn't feel she could invoke the privilege.
In the administrative interview, Deputy Reynolds backtracked on her earlier description of the conversation between herself and her husband. Deputy Reynolds would not repeat her prior statement that she knew her husband was using methamphetamine because he had told her so. Rather, she stated that she did not know her husband was using methamphetamine until the beginning of the investigation. Deputy Reynolds denied telling the investigators during the criminal interview that she knew about her husband's methamphetamine use. Deputy Reynolds's vague descriptions of the argument between herself and her husband differed from that in the criminal interview considerably. She stated that she thought she heard him tell her he had used methamphetamine, but was not sure and could not get him to confirm this or tell her anything more. Deputy Reynolds said she walked away from the conversation thinking she had probably heard wrong. She described her knowledge of his drug use after the argument as "[s]uspected would be a strong word for it." Deputy Reynolds also stated that it was only after her husband was arrested that she was convinced he was using methamphetamine.
Deputy Reynolds received an eight-hour reduction in pay for having failed to report her husband's drug use to her supervisor. She appealed the discipline, and asserted the marital communications privilege at the arbitration hearing. The hearing officer ruled that all evidence of Deputy Reynolds's conversation with her husband was inadmissible under the marital communications privilege. Absent this evidence, the hearing officer concluded that just cause did not support the eight-hour suspension, and so rescinded the discipline.
RSD filed a writ with the superior court asking it to overturn the hearing officer's opinion and award. After a hearing, the superior court granted the writ and ordered the arbitration hearing officer to reconsider the opinion and award consistent with the court's ruling that the marital communications privilege does not apply ...