Lybarger v. City of Los Angeles

• Decision Date: 31 December 1985
• Citation: 221 Cal.Rptr. 529,40 Cal.3d 822,710 P.2d 329
• Court: California Supreme Court
• Parties: , 710 P.2d 329 Michael LYBARGER, Plaintiff and Appellant, v. CITY OF LOS ANGELES et al., Defendants and Respondents. L.A. 32002.

Page 529

221 Cal.Rptr. 529

40 Cal.3d 822, 710 P.2d 329

Michael LYBARGER, Plaintiff and Appellant, v. CITY OF LOS ANGELES et al., Defendants and Respondents.

L.A. 32002.

Supreme Court of California In Bank.

Dec. 31, 1985.

Loew & Marr, Robert J. Loew, Cecil W. Marr and Mary Ann Healy, Los Angeles, for plaintiff and appellant.

Ira Reiner, City Atty., Frederick N. Merkin, Sr. Asst. City Atty., Leslie E. Brown and Linda K. Lefkowitz, Deputy City Attys., for defendants and respondents.

LUCAS, Justice.

In this case, we construe various provisions of the Public Safety Officers Procedural Bill of Rights Act (the act) (Gov. Code, § 3300 et seq.; further statutory references are to this code unless otherwise indicated). Among other issues, we consider whether appellant police officer was properly advised of his constitutional rights prior to an administrative investigation into possible criminal misconduct, and whether he was properly disciplined for failing to cooperate with the investigators. We have concluded that, although an officer who refuses to cooperate in an investigation of this kind may be administratively disciplined, the discipline in the present case must be set aside because appellant was never advised that any statements he made could not be used against him in a subsequent criminal proceeding. Had appellant been properly so advised, he might well have elected to cooperate with his employer, thereby avoiding imposition of discipline based on his insubordination. Accordingly, we will order the administrative decision imposing such discipline annulled.

Michael Lybarger appeals from a judgment denying his peremptory writ of mandate. (Code Civ.Proc., § 1094.5.) Appellant was a police officer with the 77th Street Vice Unit of the Los Angeles Police Department. On March 26, 1980, he reported to work and was informed by an officer from the internal affairs division about a major investigation involving his unit. Appellant and two other officers were transported to Parker Center for interrogation; appellant was the last of the three to be interviewed. His union provided him with an attorney for this interview and, at its commencement, appellant was informed of the allegations being investigated, including charges of false arrest, false imprisonment, falsification of records, acceptance of a bribe and conspiracy to commit these offenses. In response to his attorney's questions, the interrogating officers confirmed that a criminal investigation was pending, and that if appellant refused to cooperate in this administrative interview, he could be charged with insubordination and could lose his job. Appellant was then ordered to cooperate in the investigation. After conferring privately with his attorney, he stated that he did not want to say anything and that he would not cooperate, even though his refusal would result in a charge of insubordination.

Appellant was charged with one count of insubordination, and an administrative board hearing was had on this charge. Appellant entered a plea of guilty with an explanation, presenting the mitigating defense that although he was disobedient to the department, he was not being rebellious, but rather acted on poor advice of his attorney at the investigation. Appellant testified at the hearing that his attorney had advised him in private that the department did not have anything "on him," that if he talked he could be giving the department information that they could use, and that "if I were you, I wouldn't say a damn thing." Appellant further stated that his disobedience to the order to cooperate in the investigation was based on this advice.

The board found appellant guilty of the charge of insubordination, basing its finding on his plea, the testimony of the interrogators, and the tape recording of the investigative interview. After deliberation regarding the penalty, the board recommended appellant be removed from his position with total loss of pay. This recommendation was adopted by the police chief. Appellant filed a petition in superior court for peremptory writ of mandate ordering respondents to set aside the administrative decision removing him from his position as a police officer. He alleged that his rights under the act were violated in various respects. The trial court applied the independent judgment test and found that appellant was interrogated properly, in a proper manner at a proper time, and that the administrative findings were adequately supported. The court saw no deprivation of appellant's due process rights and found the penalty of removal justified by appellant's refusal to testify which, under the circumstances, harmed the public service. The petition was denied, and judgment was entered accordingly.

Among other contentions, appellant makes two related arguments regarding his rights under the act. First, he asserts that by reason of section 3304, subdivision (a), he cannot be administratively disciplined for exercising his constitutional right to remain silent at the investigative hearing. Second, assuming arguendo that he had no absolute right to remain silent free of administrative discipline or penalty, he argues that by reason of section 3303, subdivision (g), he should have been advised that any statements he chose to make under the compulsion or threat of such discipline could not be used against him in any subsequent criminal proceeding. As will appear following a review of the pertinent provisions of the act, we have concluded that appellant's second contention has merit.

1. The Act

The act's declared purpose was to maintain stable employer-employee relations and thereby assure effective law enforcement. ( § 3301.) Any investigation of a public safety officer which might lead to punitive action must take place under certain specified conditions. ( § 3303.) These conditions include conducting the interrogation at a reasonable hour (id., subd. a) ), limiting the interrogation to two interrogators (subd. (b) ), informing the officer in advance of the nature of the investigation (subd. (c) ), and limiting the duration of the interrogation to a reasonable period (subd. (d) ). In addition, section 3303, subdivision (e), provides in pertinent part that "The public safety officer under interrogation shall not be threatened with punitive action, except that an officer refusing to respond to questions or submit to interrogations shall be informed that failure to answer questions directly related to the investigation or interrogation may result in punitive action." (Italics added.)

Section 3303, subdivision (g), provides that "If prior to or during the interrogation ... it is deemed that he [the officer] may be charged with a criminal offense, he shall immediately be informed of his constitutional rights."

Finally, section 3304, subdivision (a), provides in pertinent part that "No public safety officer shall be subjected to punitive action ... because of the lawful exercise of the rights granted under this chapter [which includes section 3303], or the exercise of any existing administrative grievance procedure."

2. Duty to Cooperate

Appellant argues that section 3304, subdivision (a), insulated him from administrative discipline imposed solely by reason of his exercise of the right to remain silent. But appellant 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. (See Lefkowitz v. Turley (1973) 414 U.S. 70, 77-79, 94 S.Ct. 316, 322-23, 38 L.Ed.2d 274; Garrity v. State of New Jersey (1967) 385 U.S. 493, 500, 87 S.Ct. 616, 620, 17 L.Ed.2d 562.)

Similarly, appellant had no statutory right to remain silent. Section 3303, subdivision (e), expressly provides that an officer who refuses to respond to questions or submit to interrogation is subject to punitive action by his employer. Moreover, contrary to appellant's analysis, subdivision (a) of section 3304 does not protect the officer from punitive action based on his refusal to cooperate in an investigation, since such refusal is not one of the "rights granted under" the act. (Cf. § 3307, expressly creating an exemption from any disciplinary action for refusal to take a polygraph test.)

In response to the observation that section 3303, subdivision (e), expressly allows punitive action for a refusal to respond to questions directly related to the investigation, it is argued that the foregoing provision merely deals with the general or ordinary case while the protection afforded by subdivision (g) (advice regarding "constitutional rights") applies to the specific or particular case of a public safety officer under the threat of criminal prosecution. But this strained interpretation would result in an intolerable anomaly: The petty infractor who fails to respond to questioning could be subject to punitive action while the criminal offender could refuse to cooperate with absolute impunity.

We must construe the act in such a manner as to encourage full cooperation with police department investigations of criminal offenses, so long as fundamental constitutional rights are protected in the process. Such a balancing of interests is achieved by holding that, although the officer under investigation is not compelled to respond to potentially incriminating questions, and his refusal to speak cannot be used against him in a criminal proceeding, nevertheless such refusal may be deemed insubordination leading to punitive action by his employer. Seen in this light, the right to remain silent is not a "hollow" right: It may be exercised without fear of penal sanction.

Moreover, our interpretation of the act does not...