SPIELBAUER v. COUNTY OF SANTA CLARA Part I 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)
Plaintiff Thomas Spielbauer was dismissed by his employer, defendant County of Santa Clara, on the grounds that he had engaged in conduct unbecoming a county employee by making deceptive statements to a judge, and had committed insubordination by refusing to answer questions about the incident on grounds that his answers might incriminate him. He brought this action in mandate to set aside that decision. The superior court denied relief, and plaintiff brought this appeal. We have concluded that the finding of insubordination cannot be sustained because a public agency cannot penalize one of its employees for refusing to answer incriminating questions unless the state first grants or offers immunity, i.e., a binding undertaking not to use his answers in any criminal prosecution. We will therefore reverse the judgment denying relief and direct that the matter be remanded to county authorities to determine the appropriate discipline based upon the one sustainable charge.
Background
On January 27, 2003, plaintiff was counsel of record for one Michael Dignan, who was charged with possessing ammunition while a convicted felon. On that date plaintiff appeared before Judge Teilh, to whom the case had been assigned for trial, to argue certain motions in limine. Among these was a motion by the prosecutor to exclude extrajudicial statements by one Troy Boyd, who had been detained at the same time as Dignan, but not charged. Plaintiff confirmed that he intended to offer into evidence Boyd's hearsay statement to police 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.
