Ct.App. 6 H029345 Santa Clara County Super. Ct. No. CV031889. Judge: James P. Kleinberg.
The opinion of the court was delivered by: Baxter, J.
Plaintiff, a deputy public defender, was investigated by his employer, the county, upon allegations that he had made deceptive statements to the court while representing a criminal defendant. During each of several attempts to interview plaintiff in the matter, a supervising attorney directed plaintiff to answer questions about the incident, told plaintiff that his refusal to cooperate would be deemed insubordination warranting disciplind including dismissal, but advised plaintiff - accurately - that no use in a criminal proceeding (i.e., criminal use) could be made of his answers. Nonetheless, on advice of counsel, plaintiff declined to answer, invoking his privilege against compelled self-incrimination under both the federal and state Constitutions. (U.S. Const., 5th Amend., cl. 3; Cal. Const., art. I, § 15.) He was terminated from employment on grounds of the deceptive court conduct, and for disobeying the employer's orders to answer questions.
Plaintiff sought mandate to obtain reinstatement, urging, among other things, that he could not be compelled, on pain of dismissal, to answer potentially incriminating questions unless he received, in advance, a formal grant of immunity from direct or derivative use of his answers in any criminal case against him. The trial court upheld the termination, but the Court of Appeal reversed. The appellate court found substantial evidence that plaintiff had engaged in deceptive court conduct. However, it agreed with plaintiff's contention that, having invoked his constitutional right against self-incrimination, he could not be compelled, by threat of job discipline, to answer his employer's questions unless his constitutional privilege was first supplanted by an affirmative grant of criminal use immunity coextensive with the constitutional protection. We granted review to address the latter issue.
We conclude that the Court of Appeal erred. United States Supreme Court decisions, followed for decades both in California and elsewhere, establish that a public employee may be compelled, by threat of job discipline, to answer questions about the employee's job performance, so long as the employee is not required, on pain of dismissal, to waive the constitutional protection against criminal use of those answers. Here, plaintiff was not ordered to choose between his constitutional rights and his job. On the contrary, he was truthfully told that, in fact, no criminal use could be made of any answers he gave under compulsion by the employer. In the context of a non-criminal public employment investigation, 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.
Accordingly, we will reverse the judgment of the Court of Appeal.
In January 2003, plaintiff, a Santa Clara County deputy public defender, represented Michael Dignan on charges of ammunition possession by a felon. Troy Boyd had been arrested with Dignan, but not detained. Plaintiff proposed to introduce, on Dignan's behalf, Boyd's statement to the police that his parents owned the house where the ammunition was found, and he had rented it since he was 19 years old. The apparent purpose of the proffered statement was to raise a reasonable doubt about control of the area in which the contraband had been discovered. But the statement's efficacy for that purpose depended, as the Court of Appeal noted, on its "ambiguity and incompleteness"; as Boyd later explained, he did rent the house from his parents, but he sublet portions of it to others, including Dignan. Thus, if Boyd were cross-examined on the witness stand, the true context of his statement would likely be revealed.
The prosecutor moved in limine to exclude Boyd's extra-judicial statement as inadmissible hearsay. A hearing on the motion took place on Monday, January 27, 2003, before Judge Tielh. The prosecutor argued the defense could not claim Boyd's unavailability as the basis for a hearsay exception, because there was no evidence the defense had exercised due diligence to procure Boyd's presence at trial. When the court asked plaintiff what hearsay exception would apply, plaintiff said he had not sent out an investigator to look for Boyd in part because "Mr. Boyd has a warrant for his arrest. And if the San Jose Police are not going to be able to find Mr. Boyd, I think that my investigator is going to be very hard put to find an individual who is avoiding contact with anybody that has to do with the judicial system."
Plaintiff presented a $5,000 warrant for Boyd and argued that this met his burden of showing Boyd was unavailable. Plaintiff urged that exclusion of Boyd's statement would deprive his client of a critical defense. Plaintiff further represented that Boyd had experienced problems with the law and avoided all contact with authority figures. Ultimately, the court ruled in limine that Boyd's hearsay statement would be admitted.
Plaintiff then requested the jury be instructed that Boyd was a fugitive, so jurors would not wonder why he had failed to call Boyd. When the prosecutor remarked that this was a good question, because plaintiff had exerted no effort to find Boyd, plaintiff responded that he wanted to tell the jury he had not done so because "[Boyd's] got a warrant for his arrest and he's ducking." Plaintiff indicated he intended to move the arrest warrant into evidence in order to explain Boyd's absence.
Three days after this court hearing, a police sergeant went to the house in question, where he found Boyd. Boyd told the officer he had recently spoken to "a public defender investigator." Confronted in court with this information, plaintiff indicated it was he who had spoken with Boyd. Plaintiff related that on Sunday, January 26, 2003 - the day before he claimed in court that Boyd was an unavailable fugitive - he went to the house to take photographs, where he found Boyd with a group watching the Super Bowl. According to plaintiff, he carried no subpoena because he did not expect Boyd to be there. Plaintiff also said Boyd had indicated he would not cooperate in being served and did not wish to testify. Plaintiff maintained that his accidental encounter with Boyd was "attorney work product," which he had no obligation to disclose.
The prosecutor argued that plaintiff had made an affirmative misrepresentation to the court. Without ruling on this assertion, the court, per Judge Tielh, determined that Boyd was an available witness, and that this would be considered in passing upon any trial objection to the admission of Boyd's hearsay statement.
In late February or early March 2003, Chief Assistant Public Defender David Mann learned of this incident. Mann was told that the prosecutor in the Dignan case was getting transcripts in the matter and wanted "to 'go after' [plaintiff] in some fashion." When Mann contacted the district attorney's office, he was advised that three options were being considered - to file misdemeanor charges against plaintiff, to report him to the State Bar, or to "leave it to [the Public Defender's] office to handle."
Deciding not to wait for the district attorney's decision, Mann initiated an internal investigation.*fn1 On April 1, 2003, plaintiff appeared with his counsel, Zacharias Ledet, for an interview in the matter. Also present were Joe Guzman, supervisor of the felony division of the public defender's office, and a departmental investigator, Alayne Bolster. When Bolster asked plaintiff to describe his conversation with Boyd, Ledet interjected that plaintiff refused to answer on grounds of protection afforded him by the federal and state Constitutions and the laws of California.
Guzman responded by addressing the following to plaintiff: "Tom, you have a right to remain silent and not incriminate yourself. 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." (Italics added.)
Ledet retorted that the protection against penal use asserted by Guzman only applied to peace officers, and that Guzman's advisement thus afforded plaintiff no protection "unless you receive a ruling from a Court of Law." Guzman then stated he wanted to "make clear that this is not a criminal proceeding. . . . This is an employee investigation . . . . What we do here stays within the Public Defender's Office. This is not going to be sent to the DA's Office, okay. What I'm saying is, . . . anything you say at this meeting cannot be used against you in a criminal proceeding. So you are directed to answer the questions and your refusal to answer the questions will be deemed as insubordination." These points were reiterated in full later in the interview. Through Ledet, plaintiff continued to object.
A second interview, with Ledet present, occurred on April 10, 2003. Guzman advised that, because this was an internal investigation, plaintiff "[did] not have a right to refuse to answer," and that such refusal would be insubordination warranting discipline up to and including termination, but that "any information [plaintiff] provides in this particular interview cannot and will not be used against him in a criminal case." Ledet responded that Guzman had provided no authority for his assurances, and that cases cited in correspondence between the parties were concerned only with peace officers.
At the conclusion of this meeting, Ledet asserted that Guzman had exhausted his right under governing personnel policies to interview plaintiff, and that further efforts to do so "would be unreasonable." Ledet further stated that plaintiff would continue to invoke his rights not to answer.
On June 9, 2003, Mann recommended plaintiff's termination on three civil service grounds: (1) insubordination (stemming from plaintiff's refusal to answer investigators' questions), (2) gross misconduct unbecoming a county officer (stemming from the Dignan incident), and (3) seeking, in violation of office rules governing attorney ethics, to mislead a court by artifice or false statement. Plaintiff sought a prediscipline administrative hearing. (See Skelly v. State Personnel Bd. (1975) 15 Cal.3d 194, 215.) The hearing officer sustained the charges and discipline, as did the county personnel board.
Plaintiff sought mandamus relief in the superior court. Among other things, he insisted he could not be dismissed for refusing, on grounds of his constitutional right against self-incrimination, to answer his employer's potentially incriminating questions unless he received, in advance, a formal grant of criminal use immunity. The court denied the petition, ruling that substantial evidence supported the charges and discipline, and that defendant was not entitled to formal immunity before being compelled to answer his employer's questions.
The Court of Appeal reversed. The appellate court found substantial evidence supporting the charge that plaintiff's representation of Dignan involved deceptive conduct unbecoming a county officer and tending to discredit his office.*fn2 However, the court agreed with plaintiff's contention 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.
Hence, the Court of Appeal held, the employer's mere advisements and assurances that plaintiff's statements could not be used criminally were insufficient to permit compulsion of his answers. The discipline imposed, the court noted, was based in part on a finding - legally erroneous in the court's view- of plaintiff's insubordination for refusing to answer, and it was not clear he otherwise would have been terminated. Accordingly, the Court of Appeal reversed the superior court's judgment with directions to issue a writ of mandamus directing the county personnel board to vacate and reconsider its decision in light of the views expressed.
We granted review, limited to the following issue: When a public employee invokes his or her Fifth Amendment right against self-incrimination in a public employer's investigation of the employee's conduct, must the public employer offer immunity from any criminal use of the employee's statements before it can dismiss the employee for refusing to answer questions in connection with the investigation?*fn3 Turning to that question, we conclude that the answer is no.
The Fifth Amendment to the United States Constitution declares that "[n]o person . . . shall be compelled in any criminal case to be a witness against himself . . . . " (Italics added.) The California Constitution similarly provides that "[p]ersons may not . . . be compelled in a criminal cause to be a ...