Lybarger

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., §…

I write separately because I believe the issue here is far more fundamental than the mere failure to follow a statutory *831 directive. No citizen working for the government should lose his job because he chooses to exercise a constitutional right and remain silent during questioning. Since Lybarger was not guaranteed that any incriminating statements he might make during questioning could not be used against him in a criminal prosecution, he retained his constitutional prerogative not to speak, (Kastigar v. United States (1972) 406 U.S. 441 [ 32 L.Ed.2d 212 , 92 S.Ct. 1653 ]; Lefkowitz v. Turley (1973) 414 U.S. 70, 78 [ 38 L.Ed.2d 274, 282 , 94 S.Ct. 316 ]; Gardner v. Broderick (1968) 392 U.S. 273, 279 [ 20 L.Ed.2d 1082, 1087 , 88 S.Ct. 1913 ]; see Garrity v. New Jersey (1967) 385 U.S. 493 [ 17 L.Ed.2d 562 , 87 S.Ct. 616 ]; cf. People v. Rucker (1980) 26 Cal.3d 368, 390 [ 162 Cal.Rptr. 13 , 605 P.2d 843 ] [citing Kastigar and Lefkowitz].)

The termination of Lybarger’s employment for exercising this constitutional right was a clear violation of the self-incrimination privileges of the state and federal Constitutions. 1 (Gardner v. Broderick, supra, 392 U.S. 273 ; Spevack v. Klein…

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.…