MICHAEL LYBARGER, Plaintiff and Appellant, v. CITY OF LOS ANGELES et al., Defendants and Respondents, 40 Cal. 3d 822

Opinion LUCAS, J. 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 [38 L.Ed.2d 274, 281, 283, 94 S.Ct. 316]; Garrity v. New Jersey (1967) 385 U.S. 493, 500 [17 L.Ed.2d 562, 567 , 87 S.Ct. 616].) 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 render subdivision (

g) of

section 3303 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. (See Beckwith v. United States (1976) 425 U.S. 341, 345-347 [48 L.Ed.2d 1, 7, 96 S.Ct. 1612]; People v. White (1968) 69 Cal.2d 751, 760-761 [72 Cal.Rptr. 873, 446 P.2d 993].) 3.

Failure to Advise Regarding Constitutional Rights As noted previously, the act provides that an interrogated officer must be “immediately informed of his constitutional rights” once it is “deemed” that he may be charged with a criminal offense. (§ 3303, subd. (g).) In the present case, apart from being told that his refusal to cooperate would result in administrative discipline, defendant was not informed regarding the extent of his “constitutional rights.” Before considering what rights are contemplated by the foregoing provision, we must determine whether or not it was “deemed” within the meaning of

section 3303, subdivision (g), that appellant might be charged with a criminal offense at the time the interrogation commenced. (See § 3303, subd. (g).) The record contains no conclusive evidence of the officers’ subjective views regarding the matter. Yet, as previously indicated, a criminal investigation was indeed pending regarding various specified acts of misconduct by officers of the 77th Street vice unit to which appellant was assigned.

The interrogation was conducted in the presence of five investigating officers, suggesting that the department had indeed focused on appellant as a likely suspect. (As noted above, the act provides that questions should be asked by no more than two interrogators.) Finally, prior to the time when appellant elected to remain silent, his attorney summarized the various “allegations” for his client, stating that “they’re charging you” with “five specific felonies,” including false arrest, false imprisonment, falsification of records, accepting a bribe and conspiracy.

None of the investigating officers corrected counsel’s characterization of the proceeding as one brought for the purpose of investigating criminal “charges” against appellant. Under these circumstances, it is reasonable to conclude that appellant was “deemed” a criminal suspect, thereby triggering the statutory requirement that he be “immediately informed of his constitutional rights.” (Ibid.) What were appellant’s “constitutional rights”?

Given the context of an administrative inquiry into possible criminal misconduct, we think it likely the Legislature intended that interrogated officers be advised of their so-called “Miranda rights” (see Miranda v. Arizona (1966) 384 U.S. 436 [16 L.Ed.2d 694, 86 S.Ct. 1602, 10 A.L.R.3d 974]), as modified by the Lefkowitz/Garrity rule previously discussed.

In other words, appellant should have been told, among other things, that although he had the right to remain silent and not incriminate himself, (1) his silence could be deemed insubordination, leading to administrative discipline, and (2) any statement made under the compulsion of the threat of such discipline could not be used against him in any subsequent criminal proceeding. (See Lefkowitz v. Turley, supra, 414 U.S. 70, 77-79 [38 L.Ed.2d 274, 281-283]; Garrity v.

New Jersey, supra, 385 U.S. 493, 500 [17 L.Ed.2d 562, 567].) Although appellant was properly advised of the adverse effect of his silence, he was never told of the extent of the protection afforded to any statements he might make. That omission was critically important here. It is argued that, because appellant refused to answer any questions, he was not harmed by the failure to advise him of his rights. Yet had appellant understood that his statements during the administrative interview could not be used against him in a criminal proceeding, he might well have elected to cooperate rather than remain silent.

Although respondents suggest that appellant must have known his “constitutional rights,” being a police officer accustomed to admonishing suspects, and being represented by counsel at the administrative hearing, for the following reasons we cannot so readily make such a presumption on this record. First, the act specifically requires that all police officers, despite their supposed experience in law enforcement, be advised of their constitutional rights if possible criminal charges are contemplated, thus indicating a legislative judgment that some officers may be unaware of those rights.

Second, appellant’s counsel appears to have advised his client to remain silent because of the possibility appellant might incriminate himself in a criminal charge. When the subject first arose, and one of the officers confirmed that a potential criminal investigation was involved, counsel at once replied: “At this time ... we decline to answer any questions in regard to the criminal investigation.” Appellant himself, as a police officer, undoubtedly was familiar with the general admonition that anything he said would be used against him.

Thus, it appears that both appellant and his counsel may have failed to appreciate that, if appellant were compelled to testify under the threat of administrative discipline, his testimony could not be subsequently used to incriminate him in criminal proceedings. (Lefkowitz, supra, 414 U.S. at pp. 77-79 [38 L.Ed.2d at pp. 281-282].) We conclude that the trial court erred in denying a peremptory writ of mandate to annul the administrative decision terminating appellant’s employment. Accordingly, we need not reach appellant’s alternative contentions.

The judgment is reversed and the cause remanded to the trial court for further proceedings consistent with this opinion. Mosk, J., Broussard, J., Reynoso, J., Grodin, J., and Kaus, J., * concurred. We do not mean to suggest that the trigger for advisement under the statutes is dependent only upon the subjective understanding of the interrogating officers. We read

section 3303, subdivision (

g) to require the investigating officers to inform the officer being questioned of his constitutional rights whenever he refuses to answer on self-incrimination grounds. These rights include the right to remain silent, the right to the presence and assistance of counsel, and the admonition that any statements may be used against the declarant in a court of law. (See People v.

Pettingill (1978) 21 Cal.3d 231, 235, fn. 2 [145 Cal.Rptr. 861, 578 P.2d 108].) As to the concerns expressed in Chief Justice Bird’s opinion regarding the permissible scope of inquiry, we note this issue has not been raised at any point by appellant and we therefore decline to address it here. Retired Associate Justice of the Supreme Court sitting under assignment by the Chairperson of the Judicial Council.