Does FBOR Require "Transactional Immunity"?

The California Legislature enacted the Firefighters’ Procedural Bill of Rights Act (“FBOR”; Government Code §3250 et seq.) in 2007.  In enacting FBOR, the Legislature, as stated in its own bill reports, intended to provide firefighters the same protections available to police officers.  However, the rights afforded to firefighters under FBOR are not totally identical to those afforded to peace officers under the Public Safety Officers Procedural Bill of Rights Act (“POBOR”; Government Code §3300 et seq.), enacted in 1976, but in fact may be significantly more extensive, at least in one key area.  POBOR granted a number of protections to peace officers when they are the subject of administrative investigations and disciplinary actions, among other things. One provision in POBOR reads:  “If prior to or during the interrogation of a public safety officer it is deemed that he or she may be charged with a criminal offense, he or she shall be immediately informed of his or her constitutional rights.”  Government Code §3303(h.) 

This language codified “use” immunity.  That is, no incriminating statements made by the peace officer under compulsion may be used in a criminal prosecution. FBOR’s language on compelled answers to potentially incriminating questions in administrative investigations suggests that, before a firefighter may be compelled to answer an incriminating question, he or she not only must be immunized against use of incriminating answers in criminal prosecutions, but must be immunized against any potential prosecution.  i.e., granted “transactional immunity.”

Transactional immunity means that the employee must be immunized not only against use of the statements but against all prosecution.  FBOR first repeats the same language contained in POBOR as mentioned above.  However, FBOR also provides: “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.  Subject to that grant of immunity, a firefighter refusing to respond to questions or submit to an interrogation shall be informed that the failure to answer questions directly related to the investigation or interrogation may result in punitive action.”   Government Code §3253(e)(1.)

If the Legislature intended to provide this level of protection, firefighters have become the only employees in California to be so protected.  However, it is not clear whether an agency employing firefighters has the legal authority to provide “transactional” immunity.  Penal Code section 1324 suggests that only a district attorney or other prosecutor has that authority.  The final sentence of section 1324 reads: “Nothing in this section shall prohibit the district attorney or other prosecuting agency from requesting an order granting use immunity or transactional immunity to a witness compelled to give live testimony or produce evidence.”  Indeed, the courts have even questioned whether they themselves have the authority to grant transactional immunity, opining that only the “executive”, i.e. the prosecutor, has that prerogative.  A prosecutor may grant transactional immunity.  Indeed there is authority that only a prosecutor can grant transactional immunity. FBOR arguably provides an employer the statutory authorization to provide such a grant of immunity in as much as the employer is supposed to “provide” the requisite immunity.  This, however, is far from clear.

All California public employees have the same “Miranda” rights as all citizens to be free from having compelled answers to incriminating questions used against them in criminal prosecutions.  However, they do not have the right to refuse to answer questions put to them by their employers during disciplinary investigations, even though they may admit to criminal conduct, if they are first given proper admonitions.

Decisions of the United States Supreme Court in Garrity v. New Jersey (1967) 385 U.S. 493, and the California Supreme Court in Lybarger v. City of Los Angeles (1985) 40 Cal.3d. 822 and Spielbauer v. County of Santa Clara (2009) Cal.4^th 704, declare that, if a public employee is first advised of “Miranda” rights, that nothing stated in an administrative investigation can be used against them in a criminal prosecution, the employee can then be ordered, on pain of insubordination, to answer questions for administrative purposes and answers, even if incriminating, can constitutionally be used for disciplinary purposes up to and including termination of employment.

A requirement of transactional immunity as a precondition to administrative inquiry would be revolutionary.  Under pre-existing case law, a public employer has the right to question its employees appropriately about matters relating to the employee’s possible misconduct while on duty as long as the employee is not required to waive immunity with respect to the use of his or her answers or the fruits thereof in a criminal prosecution.  Public employees may constitutionally be discharged for refusing to answer potentially incriminating questions concerning their official duties if they have not been required to surrender their constitutional immunity. 

Interestingly, nothing in the legislative history mentions the language dealing with immunity.  These reports merely state that the bill “specifies the conditions under which investigations and interrogations that may lead to punitive action against firefighters must be conducted.”

The legislative history of FBOR suggests that its intent was to provide firefighters the same protections afforded peace officers by POBOR.  For example, a report of an Assembly committee reported arguments from the bill’s supporters that firefighters “deserve the same protection level and due process rights as their peace officer colleagues when administrative actions are taken against them.”  The same statement was included in a bill report submitted to the Assembly.  A report from the Senate Judiciary Committee included language stating:  “This bill would mirror most, if not all, of the provisions in POBOR and make them applicable to firefighters.”  Another bill report noted that the Senate’s amendments “make other changes necessary to conform the provisions of the [FBOR] to the Public Safety Officers’ Procedural Bill of Rights Act (POBOR).”  A report of the Senate Rules Committee merely agreed that “this bill mirrors most, if not all, of the provisions in POBOR and makes then applicable to firefighters.”  This report does mention the immunity provision, but merely states that the bill “requires that if at any point the firefighter would be charged with a criminal offense, the firefighter be informed of his/her constitutional rights.”  The bill report states nothing about the nature of the rights which must be communicated to the firefighter.  Thus, the legislative reports do not even approach a discussion of use versus transactional immunity.

Beyond this, there are problems with the wording of the legislation.  Section 3253(e)(1) reads that the employing agency not only must “provide to” the employee the grant of immunity but must, also “obtain from” the employee the grant of immunity, and must do so in writing.  What does this mean?  Clearly an employee cannot be the provider of his or her own immunity.  If the Legislature had any purpose in mind for this wording, it kept it to itself.  There is no explanation in the legislative history as to the intended purpose of these words. 

The practical consequences of requiring a grant of transactional immunity as a prerequisite to administrative interrogation could be quite significant.  Assume for the purposes of discussion only that a firefighter is suspected of having committed a violent or other serious felony which may have been job related.  The firefighter’s employer could be forced to make a choice between investigating the allegation and potentially imposing serious discipline, possibly termination, but would first need to a waiver of prosecution obtain from the District Attorney, something which may be unlikely to be forthcoming.  In the alternative, the employing department would be forced to forgo an investigation and discipline so that a prosecution, if brought, could proceed unimpeded.  A third alternative, of course, would allow the department to proceed with discipline but could not include an interrogation of the firefighter as part of an administrative investigation.  FBOR does apply only to events and circumstances involving the performance of the employee’s official duties.  Government Code §3262.  This provision reduces, but does not eliminate concerns about the potential impact of this legislation.