Public Agency Cannot Terminate An Employee For Refusing To Answer Incriminating Questions Unless The State First Offers Immunity.

            In Spielbauer v. County of Santa Clara, 2007 DJDAR 591 (Cal. App. 6th Dist. Jan. 12, 2007)( ), the California Court of Appeal held that a public agency cannot terminate an employee for refusing to answer incriminating questions unless the state first grants or offers immunity to the employee. 

            On June 9, 2003, Thomas Spielbauer, an attorney working for the Public Defender’s office for the County of Santa Clara, was terminated on the grounds that he had committed insubordination by refusing to accept a reasonable and proper assignment from a supervisor, engaged in conduct unbecoming of a County officer or employee, and violated the public defender’s office ethical rule prohibiting an employee from making deceptive statements to a judge. 

            The events leading up to Spielbauer’s termination began on January 27, 2003, when he was counsel of record for Michael Dignan, who was charged with possessing ammunition while a convicted felon.  On that day, Spielbauer attempted to offer into evidence extrajudicial hearsay testimony of Troy Boyd, which would favor of his client.  In an effort to fit the testimony under a hearsay exception, Spielbauer told the presiding judge that he had not sent an investigator to look for Boyd because there was a warrant for Boyd’s arrest and he was in hiding.  Spielbauer further requested that the jury be told that Boyd had an outstanding warrant so that the jurors would understand why Boyd was not placed on the witness stand to testify in person.  Based on Spielbauer’s claims, the court ruled that it would allow Boyd’s hearsay statements to come into evidence. 

            Spielbauer had failed to inform the court that despite his claims that Boyd was unavailable to be called as a witness, he had actually spoken with Boyd the day before the hearing.  Spielbauer had gone to Boyd’s house to take pictures for his case and had found Boyd there.  When confronted by the prosecutor, Spielbauer claimed that he had no obligation to tell the court about his interaction with Boyd and characterized the conversation as “attorney work product.” 

            In May 2003, the office of the district attorney filed a misdemeanor complaint charging Spielbauer with a deceit upon the court in violation of California Business and Professions Code section 6128.  Prompted by this complaint, the public defender’s office, Spielbauer’s employers, started its own investigation into the incident.  The office interviewed Spielbauer on two occasions, during which a dispute arose over whether Spielbauer’s was obligated to answer questions concerning the events in question.  The employer asked Spielbauer to describe the details of his interactions with Boyd.  Spielbauer’s attorney advised him to decline to answer the question under his right to remain silent and avoid self-incrimination.  In response to Spielbauer’s asserted right, Spielbauer’s supervisor, Joe Guzman, explained that he was giving a direct order to answer all questions truthfully, and that Spielbauer’s silence could be considered insubordination and could lead to discipline and even termination.  Guzman further explained to Spielbauer that his statements could not be used against him in a criminal proceeding.  Spielbauer’s attorney stated that the employer had no authority to grant immunity and that Spielbauer would continue to invoke his right to remain silent and not answer the questions posed to him about the case in question. 

            As a result of the investigation, Spielbauer was terminated on June 9, 2003.  The termination was sustained by County Personnel Board in an administrative appeal and by the trial court on Spielbauer’s petition for a writ of mandate.  The trial Spielberg’s argument that he had to receive a grant of immunity before he could be punished for refusing to answer incriminating questions and ruled in favor of the employer. 

            The Court of Appeal reversed, holding that “in the absence of a formal grant of immunity, which defendant apparently had no authority to make, plaintiff could not be guilty of insubordination for failing to answer incriminating questions.  The court stated that the county would thus have to determine whether the remaining ground of conduct unbecoming of a county employee would be enough to sustain Spielbauer’s termination. 

            The court found merit in Spielbauer’s argument that he could not be found guilty for insubordination because he could not lawfully be required to answer questions without first being granted immunity against criminal prosecution.  The court stated that “the United States Supreme Court has declared that the prohibition against officially compelled self-incrimination extends to a state’s attempts to compel a public employee, through threats of discipline, to answer potentially incriminating questions.  A public employee can be disciplined for refusing to answer such questions only if he was first granted immunity against the use of his statements, or any evidence derived from them, in any criminal case against him.” 

            The court first noted that the Fifth Amendment protections apply to state employees, but were only intended to protect individuals against the use of their compelled disclosures to convict them of a crime, not from other potential adverse effects such as termination of employment.  Thus, “the state cannot compel any person, including one of its employees, to furnish information that may contribute to the imposition of criminal penalties on that person.  If the threat of criminal penalties has been removed, however, the state can require the person to answer, and if the answers furnish grounds for other adverse actions, the erstwhile risk of incrimination poses no impediment to those actions.” (Italics in original). 

            The court explained a need to distinguish the privilege to remain silent in the absence of immunity from the exclusionary rule, which arises after an individual has been unlawfully compelled to answer incriminating questions.  Citing various federal decisions rejecting attempts to fuse the two rules, the court rejected the potential contention that the anticipated exclusion of statements at future criminal proceedings justifies their compulsion in a non-criminal setting, stating that the “interrogational privilege preserves the right to remain silent; the exclusionary rule remedies a breach of that right.”  (Italics in original). 

            Having established the need for the two protections to be kept distinct, the court then went on to address the apparent conflict of the federal protections with several California cases, under which the county claimed it was “permitted it to compel answers from plaintiff without such a grant (of immunity) so long as it told him that his answers could not be used to incriminate him.”  The court found that the California decisions, while minimizing the importance of the right to remain silent, nevertheless stood “for the interrogatee’s right to insist on immunity as a precondition for any such compulsion.” (Italics in original).  The court further reiterated that “the federal high court has directly repudiated the suggestion that the anticipated operation of the exclusionary rule supplies a substitute for a grant of immunity, justifying a compulsion to answer.” 

            The court next discussed the potential of judicially propounding self-executing immunity from criminal proceedings, which would automatically rise whenever a public employer instructed an employee to answer incriminating questions or suffer discipline for refusing to do so.  The court explained that “after due circumspection” it was highly unlikely that the California Supreme Court would adopt such an immunity.  “When the Supreme Court has squarely addressed issues of Fifth Amendment immunity, it has exhibited an ever-increasing sensitivity to the legislative and prosecutorial prerogatives potentially impaired by such immunity.”  The court noted the importance of balancing the needs of interrogators against the risk that immunity may “unduly hamper criminal prosecutions.”  Thus, the court emphasized the need for a clear grant of immunity before proceeding with any investigation which may require an employee to make incriminating statements.  “Requiring a clear grant of immunity provides superior protection to prosecutorial interests precisely because it disables other officials from unilaterally compelling statements that may taint later prosecutions.  If an official wants to compel incriminating disclosures, he will have to secure immunity; if he fails to do so, the employee is entitled to stand on his right of silence without fear of repercussions.” 

            Finally, the court turned to the issue that Spielbauer’s conduct was unbecoming of a county employee.  The court found that Spielbauer had attempted to mislead the court, regardless of whether he actually did mislead the court, and that his claims that his interactions with Boyd were protected by work product privilege were unsubstantiated.  The court found that “[s]ubstantial evidence supports the finding that plaintiff engaged in conduct unbecoming of a county employee and tending to bring discredit upon his office.”  Thus, because the court found that the County Personnel Board had upheld Spielbauer’s termination on two grounds, one of which was the court found legally unsupportable, the court remanded the case to the Board to determine whether the remaining ground of unbecoming conduct was enough to sustain the termination. 

State Law Tort Claims Which Do Not Depend On Interpretation of Collective Bargaining Agreement Are Not Pre-Empted By Section 301 of the LMRA.

            In Ward v. Circus Circus Casinos, Inc., 2007 DJDAR 439 (9th Cir. Jan. 10, 2007)( ), the Ninth Circuit Court of Appeals found that employees’ state law tort claims against the employer were not pre-empted by Section 301 of the Labor Management Relations Act (LMRA) because the claims made by the employees did not require the court to interpret the collective bargaining agreement.  Instead, the court found that the employer would still be liable under state law if the facts alleged by the employees were proven.

            The employees of Circus Circus were members of a labor union which had negotiated a collective bargaining agreement (CBA) with the employer.  The CBA provided that union representatives could communicate with the employees as long as they did not interfere with business, that the employer had the right to direct and control its employees, and that any dispute regarding the interpretation or application of the CBA had to be resolved by arbitration. 

            On May 3, 2002, the Circus employees met to distribute leaflets and discuss contract negotiations.  However, the meeting soon progressed to the point where the members were chanting with one employee standing on a chair, leading the chants.  In response, Circus security guards interrupted the meeting and attempted to disperse the union employees.  Instead, the employees locked arms and formed a circle around the employee leading the chants.  The guards pushed through the circle of employees, pulled the employee off the chair and handcuffed him. 

            In September 2003, the employees brought an action in Nevada state court, alleging that the security guards had grabbed, pushed and knocked down several employees during the break-up.  The employees charged the casino with (1) assault and battery, (2) false imprisonment, (3) intentional infliction of emotional distress, (4) negligent infliction of emotional distress, (5) negligent entrustment, and (6) negligent hiring, training and supervision.  The employer removed the case to the United States District Court, and the employees’ motion to remand to state court was denied.  In April 2004, the employer moved for summary judgment on the grounds that Section 301(a) preempted the employees’ claims, that the employees had failed to exhaust their administrative remedies under the CBA, and that the Nevada Industrial Insurance Act provided the exclusive remedy for the claims.  Several months later, the employees moved to amend their complaint to re-characterize their “labor union meeting” as an “educational session.”  The district court granted the motion for summary judgment while denying the employees’ motion to amend. 

            On appeal, the Ninth Circuit rejected the employer’s argument that the appeal be dismissed based on numerous procedural violations.  The court held that the employees’ appeal “is meritorious, and their procedural violations were not so egregious as to prevent Circus from meaningfully responding to the appeal.” 

            The Ninth Circuit then reversed the district court’s grant of summary judgment, and remanded with instructions for the case to be remanded to state court.  The Ninth Circuit stated that “[w]hen the parties do not dispute the meaning of contract terms, the fact that a CBA will be consulted in the course of state law litigation does not require preemption.”  The court noted that the employees had two types of claims: the first directly challenging the force used, which included the claims of assault and battery, intentional infliction of emotional distress and false imprisonment, and the second alleging negligence on the part of the employer, which included the claims of negligent infliction of emotional distress, negligent entrustment and negligent hiring, training and supervision.  “For each of the Workers’ claims, the determinative question ‘is whether the state law factual inquiry . . . turn[s] on the meaning of any provision of the collective-bargaining agreement.’” 

            The court explained that even if the employees’ actions had violated the CBA, the employer may still be liable under state tort law because “the CBA also does not set forth procedures for employee control or authorize the use of threats, physical force or restraint.  CBAs typically do not govern such conduct, and state claims involving physical threats or force used against an employee are usually not preempted.”  Further, the court rejected the employer’s argument that their right to direct and control employees pursuant to the CBA amounted to consent by the employees of the challenged conduct.  The court further stated that “[t]he fact that the CBA may be consulted to determine whether the guards’ behavior was reasonable does not require preemption.  A state law claim is not preempted simply because it may require consideration of the same factual issues as a federal labor claim.  Circus’ tort liability does not hinge upon whether the Workers’ activities violated the CBA.” 

            Turning to the negligence claims, the court rejected the employer’s argument that the CBA needed to be interpreted in order to determine the particular duties of care owed to the employees.  The court explained that “State law negligence claims are preempted if the duty relied on is ‘created by the collective-bargaining agreement and without existence independent of the agreement.’” In contrast, the negligence alleged by the employees would “‘violate the duty of reasonable care owed to every person in society.’”  Therefore, the court held that the state law claims were not preempted by Section 301.

            Finally, the court affirmed the district court’s denial of the employees’ motion for leave to amend their complaint, stating that there was no abuse of discretion which would warrant a reversal.       

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