SPIELBAUER v. COUNTY OF SANTA CLARA Part I

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

            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€