The Right to Remain Silent During Employer Questioning
In Lybarger v. City of Los Angeles (1985), 40 Cal. 3d 822. Officer Lybarger was found guilty of insubordination for failing to respond to questioning by his employer with regard to a criminal investigation.
He appealed, claiming that he could not be discipleined for exercising his constitutional right to remain silent.
The Supreme Court held that the officer had neither a constitutional nor a statutory right to remain silent free of administrative sanction.
"As a matter of constitutional law, it is well established that a public employee has no absolute right to refuse to answer potentially incriminating questions posed by his employer. Instead, his self-incrimination rights are deemed adequately protected by precluding any use of his statements at a subsequent criminal proceeding." (40 Cal. 3d at p. 827.)
The statute also provides that an officer who refuses to respond to questions or submit to interrogation is subject to punitive action by his employer. ( 3303, subd. (e).)
The court nevertheless found that Officer Lybarger was entitled to relief because he was not fully advised of his constitutional rights under subdivision (h), formerly (g), of section 3303, which states:
"If prior to or during the interrogation of a public safety officer it is deemed that he or she may be charged with a criminal offense, he or she shall be immediately informed of his or her constitutional rights." In determining when such advisement is required, the court ruled that "the investigating officers are required to inform the officer being questioned of his constitutional rights whenever he refuses to answer on self-incrimination grounds," as well as when the investigating officers believe him or her to be a suspect. (Lybarger v. City of Los Angeles, supra, 40 Cal. 3d at p. 829, fn. 1.)
The advisements required under subdivision (h) include the Miranda rights (i.e., right to remain silent, right to presence and assistance of counsel, and admonition that any statement may be used against declarant in court) as modified by the Lefkowitz/Garrity rule that, although an officer has the right to remain silent, his silence could be deemed insubordination, but any statement made under compulsion of threat of discipline could not be used against him in a subsequent criminal proceeding. (Lefkowitz v. Turley, supra, 414 U.S. 70, 77-79 94 S. Ct. 316, 322-323; Garrity v. New Jersey, supra, 385 U.S. 493, 500 87 S. Ct. 616, 620.)
Thus, subdivision (h) requires advisement:
(1) that the officer has the right to the presence and assistance of counsel;
(2) although he has the right to remain silent and not incriminate himself, his silence may be deemed insubordination and lead to administrative discipline;
(3) any statement made under compulsion of the threat of such discipline may not be used against him in any subsequent criminal proceeding. (Lybarger, supra, 40 Cal. 3d at p. 829.)
The court noted that its interpretation of the Act did not render subdivision (h) superfluous, "for that provision indeed confers additional protection on police officers, requiring that they be immediately advised of their constitutional rights in a noncustodial, administrative setting.
Prior to the act, of course, no such advice or admonition was required by law." (Lybarger v. City of Los Angeles, supra, 40 Cal. 3d at p. 828, original italics.) Inasmuch as Officer Lybarger was not informed of his rights under subdivision (h), he was entitled to relief.
See also Williams v. City of Los Angeles (1988) 47 Cal. 3d 195 252 Cal. Rptr. 817, 763 P.2d 480; 200; Pasadena Police Officers Assn. v. City of Pasadena (1990) 51 Cal. 3d 564, 578 273 Cal. Rptr. 584, 797 P.2d 608.
The decisions in these cases are based on the decisions of the United States Supreme Court in Lefkowitz v. Turley (1973) 414 U.S. 70 94 S. Ct. 316, 38 L. Ed. 2d 274 and Garrity v. New Jersey (1967) 385 U.S. 493 87 S. Ct. 616, 17 L. Ed. 2d 562, which held that public employees or contractors may be compelled to respond to questions about the performance of their duties only if their answers cannot be used against them in subsequent criminal prosecutions. (Accord, Gardner v. Broderick (1968) 392 U.S. 273 88 S. Ct. 1913, 20 L. Ed. 2d 1082; Lefkowitz v. Cunningham (1977) 431 U.S. 801 97 S. Ct. 2132, 53 L. Ed. 2d 1.)