BIRD, C. J., Concurring. 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 (1967) 385 U.S. 511 [17 L.Ed.2d 574, 87 S.Ct. 625]; Sanitation Men v. Sanitation Comm’r. (1968) 392 U.S. 280 [20 L.Ed.2d 1089, 88 S.Ct. 1917] [discharge of city employees for refusal to sign waivers of immunity before grand jury or for invoking self-incrimination privilege invalidated].) Further, dismissing a public employee for the mere act of remaining silent—without more—undermines the due process clause’s basic guarantee against the arbitrary exercise of government power. (See Slochower v. Board of Education (1956) 350 U.S. 551 [100 L.Ed. 692, 76 S.Ct. 637]; Bogacki v. Board of Supervisors (1971) 5 Cal.3d 771, 784-807 [97 Cal.Rptr. 657, 489 P.2d 537] (dis. opn. of Tobriner, J.) cert. den. (1972) 405 U.S. 1030 [31 L.Ed.2d 488, 92 S.Ct. 1301].)
I.
The law is clear. Statutes or governmental actions which force public employees to choose between losing their jobs or giving up their constitutional rights cannot be upheld.
In Spevack v. Klein, supra, 385 U.S. 511, the United States Supreme Court explained that the privilege against self-incrimination is “ ‘the right of a person to remain silent unless he chooses to speak in the unfettered exercise of his own will, and to suffer no penalty ... for such silence. ’ [1] [832]In this context ‘penalty’ is not restricted to fine or imprisonment. It means . . . the imposition of any sanction which makes the assertion of the Fifth Amendment privilege ‘costly.’” (Spevack v. Klein, supra, 385 U.S. at pp. 514-515 [17 L.Ed.2d at p. 577], quoting Malloy v. Hogan (1964) 378 U.S. 1, 8 [12 L.Ed.2d 653, 659, 84 S.Ct. 1489].)
Similarly, Lefkowitz v. Turley, supra, 414 U.S. 70, 71, 83-84 [38 L.Ed.2d 274, 278, 285] held that an architect could not be disqualified from public contracting as a “penalty” for asserting his constitutional self-incrimination privilege when called to answer questions regarding his contracts with the state or any of its subdivisions.
And in Gardner v. Broderick, supra, 392 U.S. 273, a case strikingly similar to this one, the court held unconstitutional a city charter provision which authorized the discharge of a police officer who had refused to waive immunity from prosecution when he appeared before a grand jury investigating police misconduct. (Id., at pp. 278-279 [20 L.Ed.2d at pp. 1086-1087.].)
Admittedly, the stated goal of the Public Safety Officers Procedural Bill of Rights Act (Gov. Code, § 3300 et seq.,2 hereinafter the Act)—to assure “effective law enforcement” (§ 3301)—is an important one which is furthered by internal investigations of police misconduct. However, caution must be exercised before constitutional safeguards are relaxed in order to permit more efficient and effective investigatory procedures. The reason is quite simple. Encroachments upon constitutionally protected freedoms in the interest of efficient and effective investigation of police misconduct may seem benign in the context in which they are originally raised. However, once these encroachments are established, they may well be applied in contexts not originally contemplated.
As the United States Supreme Court advised nearly 100 years ago; “It may be that it is the obnoxious thing in its mildest and least repulsive form; but illegitimate and unconstitutional practices get their first footing in that way, namely, by silent approaches and slight deviations from legal modes of procedure. This can only be obviated by adhering to the rule that constitutional provisions for the security of person and property should be liberally construed. ... It is the duty of the courts to be watchful for the constitutional rights of the citizen, and against any stealthy encroachments thereon.” (Boyd v. United States (1886) 116 U.S. 616, 635 [29 L.Ed. 746, 752, 6 S.Ct. 524].) Thus it is understandable that while “claims of overriding interests are not unusual in Fifth Amendment litigation[,] they have not [833]fared well.” (Lefkowitz v. Turley, supra, 414 U.S. at p. 78 [38 L.Ed.2d at p. 282].) These principles guide the resolution of the issues in this case.
The Act provides that “an officer refusing to respond to questions or submit to interrogations shall be informed that the failure to answer questions directly related to the investigation or interrogation may result in punitive action.” (§ 3303, subd. (e).) Section 3304, subdivision (a) provides that the head of an agency may “order[] a public safety officer to cooperate with other agencies involved in criminal investigations” and that “[i]f an officer fails to comply with such an order, the agency may officially charge him with insubordination. ” Finally, subdivision (g) of section 3303 requires that the officer be “informed of his constitutional rights” during the course of an interrogation if “it is deemed that he may be charged with a criminal offense.”
Significantly, the “it is deemed” language of subdivision (g) is susceptible to an interpretation that either an investigating officer or the officer being investigated may “deem” that the latter may be charged with a criminal offense. For this reason, the statute requires investigating officers to inform the officer facing questioning of his right to use immunity when either he or they “deem” that he may be “charged with a criminal offense.”
Accordingly, subdivision (g) of section 3303 required the investigating officers to inform appellant that he was guaranteed use immunity once “it [was] deemed” by any of the parties that appellant could be charged with a criminal offense. Since no such protection was offered to Officer Lybarger, and since he might not have remained silent and lost his job had he been fully informed of the consequences of speaking, his employment was improperly terminated.
This construction of the statute is also the only one consistent with the self-incrimination privilege. Gardner v. Broderick, supra, 392 U.S. 279 illustrates this point. In Gardner, a city charter provision required police officers to sign a waiver of immunity for answers to questions before a grand jury. The refusal to do so would result in termination of employment. Gardner refused to sign the waiver and his employment was terminated. Under existing law, the signed waiver would probably have been ineffective since it was “coerced” by the threat of dismissal. (See id., at pp. 278-279 [20 L.Ed.2d at p. 1087]; Garrity v. New Jersey, supra, 385 U.S. at pp. 497-498 [17 L.Ed.2d at pp. 565-566].) However, the officer apparently was not aware of his right to challenge the waiver on that ground.
The Gardner court found this fact to be critical. It concluded that “ [petitioner could not have assumed—and certainly he was not required to [834]assume—that he was being asked to do an idle act of no legal effect. In any event, the mandate of the great privilege against self-incrimination does not tolerate the attempt, regardless of its ultimate effectiveness, to coerce a waiver of the immunity it confers on penalty of loss of employment.” (Gardner, supra, 392 U.S. at p. 279 [20 L.Ed.2d at p. 1087], italics added.) The court thus declared the city charter provision invalid and reversed the state court decision denying him reinstatement and backpay.
The logic underlying Gardner is that an officer under investigation is not required to speculate as to what his constitutional rights are. If an officer chooses to remain silent upon the reasonable belief that he is faced with the choice of exercising his constitutional rights at the expense of losing his job, the Constitution should not abandon him. As the Supreme Court held in Garrity v. New Jersey, supra, 385 U.S. at page 497 [17 L.Ed.2d at page 565], “[t]he option to lose [one’s] means of livelihood or to pay the penalty of self-incrimination is the antithesis of free choice to speak out or to remain silent.”
Consistent with the spirit of Gardner, section 3303, subdivision (g) requires the investigating officers to inform the officer being questioned of his right to use immunity whenever he refuses to answer on self-incrimination grounds. An officer should not be required to guess at the extent of his rights. An interpretation allowing either party to “deem” that self-incrimination is implicated by questioning avoids the constitutional problem raised in Gardner.3
II.
There are grave due process problems inherent in any system which permits dismissal of an employee solely because he or she invokes a constitutional privilege. Permitting termination for the mere act of remaining silent creates an open invitation for those in power to abuse an otherwise legitimate investigative mechanism.
Justice Cardozo once wrote that the “protection of the individual against arbitrary action” is the very essence of due process. (Ohio Bell Tel. Co. v. Comm’n (1937) 301 U.S. 292, 302 [81 L.Ed. 1093, 1100, 57 S.Ct. 724].) In the public employment context, this means that the basis for discharge [835]must be rationally related to qualifications for the job. (Morrison v. State Board of Education (1969) 1 Cal.3d 214, 234 [82 Cal.Rptr. 175, 461 P.2d 375]; Slochower v. Board of Education, supra, 350 U.S. at p. 559 [100 L.Ed. at p. 701].) There must be a sufficient “nexus” between the asserted grounds for dismissal and the fitness to carry out the responsibilities of employment. (Perrine v. Municipal Court (1971) 5 Cal.3d 656, 663 [97 Cal.Rptr. 320, 488 P.2d 648], cert. den. 404 U.S. 1038 [30 L.Ed.2d 729, 92 S.Ct. 710]; Morrison v. State Board of Education, supra, 1 Cal.3d at p. 234; Perea v. Fales (1974) 39 Cal.App.3d 939, 942 [114 Cal.Rptr. 808].) It is with these principles in mind that the Act must be analyzed.
The Act permits dismissal for refusal to answer any question asked in the course of an investigation or interrogation. (§ 3303, subd. (e).) The statute does not require the investigation or interrogation to be related to conduct while on the job or fitness to carry out official duties. Thus, questioning could conceivably cover such irrelevant subjects as the officer’s sexual or off-duty activities or his personal beliefs. Nevertheless, the statute requires the officer to answer all questions that “directly relate” to the investigation or face a charge of insubordination and possible termination. (Ibid.) And although the officer is entitled to an administrative appeal if he is discharged (§ 3304, subd. (b)), the issues in that hearing may well be confined, as they are in this case, to whether the officer refused to answer rather than whether the questions asked were related to job performance.
Over the years, the state and federal courts have invoked the due process clause to prevent possible abuses of such far-reaching statutes. Not so long ago, for example, “national security” was thought to justify the practice of refusing employment to or terminating the employment of any person who declined to answer questions or sign oaths concerning his or her affiliation with so-called “subversive” organizations.4 Many statutes were passed authorizing such practices. (See, e.g., former Ed. Code, § 12604 (enacted 1953), now § 7004.)
Upon closer examination, however, courts began to find that many such practices could not be justified as legitimate concerns about job fitness. In the landmark case of Slochower v. Board of Education, supra, 350 U.S. 551, for example, a teacher at a New York state college had been dismissed [836]solely because he had invoked the Fifth Amendment privilege when questioned by a congressional committee. A state statute provided for the automatic dismissal of any employee who relied on the Fifth Amendment to refuse to answer government inquiries. The high court found the teacher’s termination violated due process, reasoning that the statute “operates to discharge every city employee who invokes the Fifth Amendment. In practical effect the questions asked are taken as confessed and made the basis of the discharge. No consideration is given to such factors as the subject matter of the questions, remoteness of the period to which they are directed, or justification for exercise of the privilege. It matters not whether the plea resulted from mistake, inadvertence or legal advice conscientiously given, whether wisely or unwisely. The heavy hand of the statute falls alike on all who exercise their constitutional privilege, the full enjoyment of which every person is entitled to receive.” (Id., at p. 558 [100 L.Ed. at p. 700].)
Although a Fifth Amendment right was at issue in Slochower, the court explicitly based its decision on due process grounds, finding that the teacher was dismissed because of “events occurring before a federal committee whose inquiry was announced as not directed at ‘the property, affairs, or government of the city, or . . . official conduct of city employees,”’ and thus bore no rational relationship to his fitness for employment. (350 U.S. at p. 558-559 [100 L.Ed. at pp. 700-701].) The court found that, “[s]ince no inference of guilt was possible from the claim [of privilege] before the federal committee, the discharge falls of its owhWeight as wholly without support.” {Ibid.)
This court responded to Slochower in Board of Education v. Mass, supra, 47 Cal.2d 494. There, the court reviewed the constitutionality of this state’s anti-subversive statute which permitted the dismissal of any teacher who refused to answer questions before any state or federal legislative committee investigating “un-American activities.” (Id., at p. 495, fn. 1.) The court held that in order to avoid an unconstitutional application of the statute it had to be read as requiring a full hearing and a determination that an employee’s reasons for invoking the privilege were not sufficient. “Factors of the type mentioned in the Slochower decision . . . should, of course, govern the determination of the sufficiency of the employee’s reasons.” (Mass, supra, 47 Cal.2d at p. 499.)
Outside of the interrogation context, this court has held that a termination cannot be premised on arbitrary factors. Thus, in Morrison v. State Board of Education, supra, 1 Cal.3d 214, this court held that a schoolteacher could not be discharged for engaging in a noncriminal homosexual relationship with another teacher. Such acts supported no inference of the teacher’s unfitness to teach. (Id., at p. 238.) The court ruled that “[n]o person can [837]be denied government employment because of factors unconnected with the responsibilities of that employment. ” (Id., at p. 234.)
As noted, subdivision (e) requires an officer either to “respond tp questions” regardless of the subject under investigation, or face “punitive action.” Since that statute is inconsistent with Morrison’s command that reasons for termination be “[¡connected with the responsibilities of [] employment,” it should be construed to permit sanctions against an officer only when there is a refusal to answer questions designed to elicit statements relating to official duties or fitness to be a police officer.
Throughout this opinion, references to the privilege against self-incrimination are intended to refer to the privileges in both the Fifth Amendment and article I, section 15 of the California Constitution. “[T]he protection afforded to individuals in this state by the privilege against self-incrimination in the California Constitution is at least as broad as, and often broader than, that accorded by the federal Constitution^]” (People v. Rucker, supra, 26 Cal.3d at p. 390.)
Further statutory references are to the Government Code unless otherwise indicated.
As should be apparent, I do not agree with the majority’s assertion that no law apart from the Act itself requires an officer to be advised of his constitutional rights before being faced with the choice of incriminating himself or losing his job. (Maj. opn., ante, at p. 828.) Nothing in Beckwith v. United States (1976) 425 U.S. 341, 345-347 [48 L.Ed.2d 1, 6-8, 96 S.Ct. 1612] or People v. White (1968) 69 Cal.2d 751, 760-761 [72 Cal.Rptr. 873, 446 P.2d 993], upon which the majority rely, compels their conclusion.
For example, in Board of Education v. Mass (1956) 47 Cal.2d 494, 498 [304 P.2d 1015], this court stated that “the Communist Party is a continuing conspiracy against our government [and Royalty on the part of public employees is essential to orderly and dependable government and is therefore relevant to fitness for such employment!.]” There, the court held a schoolteacher could be dismissed for claiming his Fifth Amendment privilege before the House of Representatives Committee on Un-American Activities, provided he was given a proper administrative hearing upon termination.