The Firefighters' Procedural Bill of Rights Act (Government Code Section 3250, et seg.) was drafted in 2007, when the Court of Appeal decision inSpielbauer still had legal vitality. The Act included a Spielbauer-inspired provision (Government Code Section 3253(e)(l)) that states in pertinent part:

"The employer shall provide to, and obtain from, an employee a formal grant of immunity from criminal prosecution, in writing, before the employee may be compelled to respond to incriminating questions in an interrogation ..."

This part of the Act was apparently added to satisfy the constitutional consideration raised by the Sixth District. However, by the time the Act went into effect on January 1,2008, the Spielbauer case had already been accepted for review by the California Supreme Court, rendering that decision of no precedential value.

Does the Supreme Court ruling invalidate this provision of the Act?
Not specifically. The Supreme Court determined that pre-interrogation immunity was not required by the State or Federal Constitutions. The Supreme Court did not suggest that the Legislature's creation of 3253(e)(l), which might provide more rights than constitutionally required, was somehow beyond its authority to make. In its opinion, the Court made only a fleeting reference to that provision and without critical comment.

Will the ruling have any impact on fire department investigations?
The answer to this question is yet to be determined. First, we are aware of no fire agencies that have sought formal immunity for employees to be interrogated, even when the Sixth District's Opinion was citable law. Next, as the Supreme Court stated, there is no adequate mechanism for the agency to seek and obtain immunity. That being so, a fire agency may choose to ignore the impossible or implausible prerequisite or immunity, and simply seek to apply the standards of Lybarger. Since most employees being interrogated about potentially criminal matters would be primarily concerned about not having their statements discoverable in a criminal case against them, the Lybarger advisals would probably be deemed sufficiently adequate by employees for their own purposes.

However, if an employee's misconduct could be proven only through the employee's own statement, it might behoove the employee to refuse to answer the employer's questions. The issue then becomes, given the plain language of 3253(e)(l), can the employee be considered insubordinate for refusing to answer questions that the statute states he has no duty to answer absent immunity? As insubordination is often defined as the refusal to follow a properly communicated and lawful order, the elements of that offense may not be met. No one in such circumstances should refuse an order without first discussing the matter exhaustively with legal counsel.

Certainly, these situations would probably be few in number, and are not those that the statute was designed to address. The Legislature undoubtedly acted to resolve what had been perceived to be a constitutional problem as discussed by the Sixth District in Spielbauer. Certainly, it does not appeal reasonable that the Legislature was trying to make it more difficult for public employers to obtain necessary information from its employees. One would expect, especially in light of the Supreme Court's emphasis on the importance of a public employer being able to conduct investigations, that fire agencies would likely rely on Lybarger warnings in the overwhelming number of cases, notwithstanding statutory language to the contrary. In the meantime, one can expect that fire management will seek redress from the Legislature to remove the problematic language of 3253(e)(I) that was left over by the legislative reaction to the Sixth District opinion.