SPIELBAUER v. COUNTY OF SANTA CLARA Part II 01:29:2007
SPIELBAUER v
SPIELBAUER v. COUNTY OF SANTA CLARA
Filed 1/12/07
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SIXTH APPELLATE DISTRICT
THOMAS SPIELBAUER,
Plaintiff and Appellant,
v.
COUNTY OF SANTA CLARA et al.,
Defendants and Respondents.
H029345
(Santa ClaraCounty
Super. Ct. No. CV031889)
STORY CONTINUED FROM PART I……
D. Conflation of Federal Protections in California Cases
The relatively straightforward analysis set forth above conflicts with several California decisions that have failed to note the dual nature of the federal protection and the need for an offer or grant of immunity as a predicate for lawfully compelled answers. Defendant contends that these cases permitted it to compel answers from plaintiff without such a grant, so long as it told him that his answers could not be used to incriminate him. Defendant cites Kelly v. State Personnel Board (1979) 94 Cal.App.3d 905, 911 (Kelly), where a criminalist challenged his dismissal from state service for failing to comply with his employer's request for information concerning his alleged mishandling of controlled substances.[1] He contended that the dismissal violated his rights to free association and privacy. (Kelly, supra, 94 Cal.App.3d at p. 911.) After acknowledging that it was â€
Description
Public employee may not be terminated or otherwise disciplined for invoking Fifth Amendment right to refuse to answer questions during internal investigation into employee's alleged misconduct unless immunized against having his responses used against him or her in any subsequent criminal prosecution. Deputy public defender who, in seeking to have witness declared unavailable to introduce hearsay statements into evidence, asserted as a fact that he had "not sent [his] investigator out to try to find" the witness "in large part" because witness "has a warrant out for his arrest," and if the police had failed to serve that warrant, "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" when in fact deputy public defender knew that the witness was at home, engaged in conduct unbecoming a public employee, regardless of whether judge found the attorney's conduct to be improper in the context of the criminal case. Witness' statements to deputy public defender, as reported by witness, were not shielded by work-product privilege from being used in employee discipline proceeding. Where personnel board properly found employee to have engaged in conduct unbecoming but improperly found him to be insubordinate, board was required to reconsider the case and to determine whether conduct unbecoming was, in and of itself, a sufficient basis for termination.
